In Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), a federal appeals court ruled that school officials did not violate the First Amendment rights of a student whom they punished for wearing T-shirts with anti-gay messages. The majority had reasoned that school officials could limit the student’s speech because it invaded the rights of gay and lesbian students.While the Supreme Court later vacated the lower court’s decision, it remains important because it examined an important—and still unanswered— question about when school officials can punish student speech that is deemed harmful to other students.

Poway High School in San Diego allowed the student club Gay-Straight Alliance to hold a “Day of Silence” at the school to teach students tolerance about sexual orientation. Some students, including then-sophomore Tyler Harper, objected to the messages of this program on religious grounds. Harper wore T-shirts bearing messages such as “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED” and “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27.’”

Harper’s teacher cited him with a dress code violation and sent him to the principal’s office, where he had to remain the rest of the school day. Harper later filed a federal lawsuit, alleging violation of several constitutional rights, including First Amendment claims involving freedom of speech, free exercise, and the establishment clause.

A district court rejected Harper’s claim for a preliminary injunction. On the free speech claim—the major issue in the litigation—the district court reasoned that school officials could prohibit Harper’s clothing based on the Supreme Court’s standard in Tinker v. Des Moines Independent Community School District (1969). The Tinker standard provides that school officials can prohibit student expression if they can reasonably predict that the student speech will cause a substantial disruption of school activities. The district court pointed to controversy and tension the previous year regarding another Day of Silence event.

On appeal, a three-judge panel of the Ninth Circuit also rejected Harper’s claims for a preliminary injunction by a 2-1 vote. However, the majority focused on another part of the Tinker standard. According to Judge Stephen Reinhardt, the “determinative issue” was “the impermissible intrusion on the rights of gay and lesbian students.” He focused on other language from the Tinker opinion that allows school officials to prohibit student speech that invades the rights of others: “Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn,” he wrote.

Reinhardt reasoned that students generally can speak on controversial issues and limited his holding “to instances of derogatory and injurious remarks directed at students’ minority status such as race, religion and sexual orientation.” He also rejected Harper’s other religion-based First Amendment claims.

Judge Alex Kozinski dissented, believing that the school had committed viewpoint discrimination by promoting the Day of Silence but disallowing Harper’s speech. Kozinski reasoned that Tinker’s “invasion of the rights of others” language should be limited to “assault, defamation, invasion of privacy, extortion and blackmail” because otherwise “a state legislature could effectively overrule Tinker by granting students an affirmative right not to be offended.” He also believed that the school’s anti-harassment policy was substantially overbroad.

Harper sought en banc review,which was denied over the dissents of five judges. The en banc order featured heated opinions from Reinhardt and the dissenters. While the appeal over the denial of preliminary injunctive relief continued, the federal district court entered final judgment in January 2007.

In March 2007,the Supreme Court,in an unsigned order, granted certiorari in Harper and vacated the judgment “with instructions to dismiss the case as moot.” The mootness question arose because Harper since had graduated from high school. The Court noted that this action would permit “relitigation” of the underlying issues if necessary.

Although Reinhardt’s opinion was vacated, numerous lower courts have cited the opinion, which continues to engender substantial academic debate.The question remains as to when school administrators can punish student speech because they believe it invades the rights of other students.

Tyler Harper’s attorneys are still litigating the underlying First Amendment issues involving the school’s dress code policy under which he was cited. In February 2008, a federal district court again ruled that school officials did not violate Tyler Harper’s First Amendment rights.

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