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

By The Associated Press

Editor’s note: On July 31, 2006, the full 9th Circuit refused an appeal following the panel decision in April. In October 2006, lawyers for Tyler Chase Harper filed an appeal with the U.S. Supreme Court.

SAN FRANCISCO — A suburban San Diego teenager who was barred from wearing a T-shirt with anti-gay rhetoric to class lost a bid to have his high school's dress code suspended after a federal appeals court ruled yesterday that the school could restrict what students wear to prevent disruptions.

The 2-1 ruling by a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals addressed only the narrow issue of whether the dress code should not be enforced pending the outcome of the student's lawsuit.

The majority said, however, that Tyler Chase Harper was unlikely to prevail on claims that the Poway Unified School District violated his First Amendment rights to freedom of speech and religion for keeping him out of class when he wore a shirt with the message "homosexuality is shameful."

Harper sued the school district in San Diego federal court after the principal at Poway High School refused to let the student attend class wearing a T-shirt scrawled with the message "homosexuality is shameful."

Harper was a sophomore at Poway High in 2004 when he wore the T-shirt the day after a group called the Gay-Straight Alliance held a "Day of Silence" to protest intolerance of gays and lesbians. The year before, the campus was disrupted by protests and conflicts between students over the Day of Silence.

After Harper refused to take off the T-shirt, Poway High's principal kept Harper out of class and assigned him to do homework in a conference room for the rest of the day. He was not suspended from school.

Yesterday, the 9th Circuit majority said "the school is permitted to prohibit Harper's conduct ... if it can demonstrate that the restriction was necessary to prevent either the violation of the rights of other students or substantial disruption of school activities."

The opinion in Harper v. Poway Unified School District, written by Judge Stephen Reinhardt and joined by Judge Sydney Thomas, didn't decide the merits of the student's lawsuit, which will be heard in federal court in San Diego.

Judge Alex Kozinski wrote a blistering dissent, arguing that the high school had in effect authorized a heated debate over sexual orientation when it allowed the Day of Silence.

"Harper's T-shirt was not an out-of-the-blue affront to fellow students who were minding their own business," Kozinski wrote. "Rather, Harper wore his T-shirt in response to the Day of Silence, a political activity that was sponsored or at the very least tolerated by school authorities."

Jack Sleeth, a school district attorney, said that the 9th Circuit majority ruling supports the district's prohibition against T-shirts with messages that are offensive to some.

"When it violates the rights of others, then it can be prohibited," Sleeth said. "It is that simple of an issue."

Robert Tyler, an attorney for Harper, said he might wait until the main case was decided before determining if further appeals are necessary.

"Mr. Harper's speech was censored," Tyler said. "There wasn't any disruption, but there was concern that it was politically incorrect."