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Court vacates 9th Circuit ruling against anti-gay T-shirt

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — It is not uncommon for the Supreme Court to overturn a decision by the 9th U.S. Circuit Court of Appeals — especially one written by liberal Judge Stephen Reinhardt.

But yesterday, in a closely watched student free-speech case, the high court blew up a “Reinhardt rocket” in an unusual way. It granted review in the case, but instead of placing it on the docket for oral argument, it reached down to “vacate” or set aside Reinhardt’s decision — rendering it null and void without a hearing.

The net effect of the Court’s ruling in Harper v. Poway Unified School District, is to set aside a 9th Circuit decision that had been attacked as viewpoint-based censorship of student speech in the name of political correctness. But because the 9th Circuit ruling only pertained to a request for an injunction against enforcement of the school district’s disputed policy, the underlying school district policy remains in place, and is the subject of ongoing litigation.

“This is a good day for freedom of speech,” said Jordan Lorence, lawyer for the Alliance Defense Fund, which brought the case on behalf of Poway High School student Tyler Chase Harper. “The Ninth Circuit decision armed school officials with a wide-ranging, politically-correct justification to censor any student viewpoints it did not want expressed in the school.”

Harper was suspended by school officials for wearing a T-shirt to school in 2004 with the messages “I will not accept what God has condemned,” and “Homosexuality is shameful. Romans 1:27.” He wore the shirt on the school district’s “Day of Silence,” meant to encourage tolerance of gays. Students were allowed to wear T-shirts conveying pro-gay messages. School officials, claiming that Harper’s “negative” message could be disruptive, suspended him after he refused to take off the shirt.

Lawyers for Harper sued the school district on First Amendment and equal-protection grounds, seeking an injunction against enforcement of the school policy. A federal district court judge and then the 9th Circuit denied the injunction request. In Reinhardt’s ruling, the appeals panel said, “Those who administer our public educational institutions need not tolerate verbal assaults that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development.” Reinhardt added, “Because a school sponsors a ‘Day of Religious Tolerance,’ it need not permit its students to wear T-shirts reading, ‘Jews Are Christ-Killers’ or ‘All Muslims Are Evil Doers.’”

In dissent, Judge Alex Kozinski said the school district had offered no evidence that Harper’s T-shirt was or could be disruptive, adding that in fact, the dialogue it could provoke would be educational — especially on a day dedicated to tolerance.

“No doubt, everyone learned an important civics lesson about dealing with others who hold sharply divergent views,” Kozinski wrote. Invoking the Court’s 1969 decision in Tinker v. Des Moines Independent School District, Kozinski also wrote, “Perhaps school authorities should have greater latitude to control student speech than allowed them by Justice Fortas’s Vietnam-era opinion in Tinker ... . Perhaps the narrow exceptions of Tinker should be broadened and multiplied. Perhaps Tinker should be overruled. But that is a job for the Supreme Court, not for us.”

After the 9th Circuit denied an en banc rehearing of the case, Harper took the case to the Supreme Court, where it took an unusual turn. In his petition, lawyers for the Alliance Defense Fund suggested that because Harper had graduated from Poway High School, the request for an injunction could be regarded as moot — since an injunction would order the school district to change its behavior toward someone who is no longer a student.

To avoid having the policy issue declared moot, Harper noted that his sister, Kelsie, was still a student at the school and wanted to engage in the same speech. Harper’s lawyers filed a motion with the high court seeking permission for Kelsie Harper to intervene. But if Kelsie’s effort to intervene in the case fails, Harper’s lawyers said, the injunction request truly is moot — though not Harper’s fault. And if that is the case, they continued, under Court precedents the Supreme Court should set aside the 9th Circuit ruling against the injunction because Harper did not have a fair chance to appeal it.

The Poway district, in its Court filings, also suggested the case was moot, but apparently requested only that the Supreme Court deny review — which would leave the 9th Circuit ruling in place.

In a one-two punch yesterday, the high court took the approach suggested by Harper, denying the motion on behalf of Kelsie Harper to intervene, which then cleared the way for its second action — vacating the 9th Circuit ruling and sending it back to that court for it to declare the case moot.

The Court noted that Justice Stephen Breyer dissented, but Breyer did not give a reason.

“The Supreme Court could have simply denied cert in this case, but it did not,” said the Alliance Defense Fund’s Lorence on the Constitutionally Correct weblog. “I think it is a fair conclusion to say that the justices reached out to eliminate a poorly-reasoned Ninth Circuit decision.”

The unsigned order by the high court, citing 1950 decision in United States v. Munsingwear, indicated that it had taken similar action in past cases involving mootness to “clear the path for future relitigation” of the underlying issues.

Lorence said lawyers for Harper would return to lower courts to assert Harper’s First Amendment claims in the case, now that the ruling regarding the injunction has been set aside.

In published reports, lawyers for the school district said they were optimistic that on the core First Amendment issues, they would be able to successfully defend the suspension of Harper.

In January, while the injunction issue was pending before the high court, a federal district judge in California ruled in favor of the school district’s action and rejected Harper’s First Amendment arguments. That ruling will be the vehicle for the appeal that can now take place before the 9th Circuit.


9th Circuit: High school can bar anti-gay T-shirt — for now

Panel majority says teen's First Amendment claims will likely fail in lower court; Judge Alex Kozinski writes blistering dissent. 04.21.06

Federal judge rejects student's challenge of dress code
Tyler Chase Harper sued California school district after he was barred from wearing T-shirt with anti-gay message. 01.26.07

Court refuses to suspend school dress code
But justices also vacate 9th Circuit ruling against student in San Diego case involving anti-gay T-shirt. 03.06.07

Students sue to wear anti-gay T-shirts at school
Suburban Chicago high school refused to allow shirt with messages opposing homosexuality during National Day of Silence. 03.23.07

Federal judge upholds school's ban on anti-gay T-shirt
Court won't grant preliminary injunction allowing students to wear 'Be Happy, Not Gay' shirts in protest of National Day of Silence. 04.18.07

La. high school bans 'Free the Jena 6' T-shirts
Administrators say disruption caused by shirts supporting six black students accused of beating white schoolmate — not the shirts themselves — was reason for ban. 08.30.07

Federal judge backs school’s ban of anti-gay T-shirt
Ruling is based on 9th Circuit decision that found message on Tyler Harper's shirt infringed upon the rights of other students 'in the most fundamental way.' 02.14.08

Tinkering with Tinker standards?
By David L. Hudson Jr. Full 9th Circuit declines to review anti-gay T-shirt case after panel focused on unusual aspect of student-speech ruling in Tinker v. Des Moines. 08.09.06

In debates over homosexuality, schools should be both safe and free
By Charles C. Haynes A good place to start would be to address growing tension between free-speech, religious claims on one side vs. concerns about harassment of gay, lesbian students on the other. 07.09.06

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