A federal appeals court鈥檚 ruling that a public school may prohibit students鈥� wearing of T-shirts bearing slogans that 鈥渄enigrate鈥� gay and lesbian students was hailed last week by gay-rights advocates, but drew fire from some legal observers, who said it endorsed viewpoint discrimination.
The 2-1 decision late last month by a panel of the U.S. Court of Appeals for the 9th Circuit came in a much-debated case involving a student at a California high school who wore a T-shirt calling homosexuality 鈥渟hameful.鈥�
鈥淭hose 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,鈥� U.S. Circuit Judge Stephen Reinhardt wrote for the majority.
In a sharp dissent, Judge Alex Kozinski said that 鈥渙f the possible measures a school might take to deal with substantial disruption of the school environment, those involving viewpoint discrimination would seem to me to be the least justifiable.鈥�
Some legal observers predict that a larger panel of the San Francisco-based 9th Circuit court will agree to rehear the case and that it is likely to eventually reach the U.S. Supreme Court.
鈥淭here does seem to be disagreement in the way the other circuits view the issue,鈥� said Eugene Volokh, a law professor and constitutional scholar at the University of California, Los Angeles. He said the decision is 鈥渘ovel [in that] there鈥檚 an inherent right that minority group members do not have to hear speech that is considered harmful to them.鈥�
鈥楽ilent鈥� Protest
The case pits a public school鈥檚 concern about the protection of students in a minority group that has been subjected to harassment against the First Amendment free-speech rights of other students.
In 2004, the parents of Tyler Chase Harper, a student at Poway High School, sued the 33,000-student Poway, Calif., school district after administrators there barred him from wearing a shirt bearing the hand-lettered messages 鈥淏e ashamed, our school embraced what God has condemned鈥� and 鈥淗omosexuality is shameful,鈥� along with a Bible-verse citation. (鈥淭-Shirts on Gay Issues Spur Lawsuits,鈥� Jan. 5, 2005.)
Mr. Harper, now a senior at the school, wore his shirt on April 22, 2004, to protest his schoolmates鈥� participation the previous day in the annual Day of Silence, a national event sponsored by the Gay, Lesbian, and Straight Education Network in which students mark their support for gay rights by not speaking for a day.
The school had experienced altercations on the previous year鈥檚 Day of Silence, and the principal told Mr. Harper that his shirt was 鈥渋nflammatory鈥� and might cause further conflict. The student was barred from wearing the shirt in class, and upon refusing to remove the shirt, he was required to remain in the school office the rest of the day. The principal declined to suspend him.
The appeals court鈥檚 April 20 ruling upheld the denial by the U.S. District Court in San Diego of the Harper family鈥檚 request for a preliminary injunction to block the Poway district from restricting students from wearing similar T-shirts while legal proceedings continued.
Judge Reinhardt wrote that under the Supreme Court鈥檚 1969 decision in Tinker v. Des Moines Independent Community School District, a school may regulate student speech for one of two reasons. One is if it would result in 鈥渟ubstantial disruption of or material interference with school activities.鈥� The other鈥攖he reason cited by the 9th Circuit panel鈥攊s if the speech would 鈥渋mpinge upon the rights of other students.鈥�
鈥淪peech 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,鈥� Judge Reinhardt wrote, 鈥渟erves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn.鈥�
鈥淭he demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development,鈥� the judge wrote, citing research documenting links between harassment at school and various ill consequences for gay students.
Dissenting View
But Judge Kozinski, in his dissenting opinion, said 鈥渋t is quite clear that Harper鈥檚 lone message was not sufficiently severe and pervasive鈥� to constitute harassment that should trump the First Amendment protection of speech.
The evidence in the case, Judge Kozinski argued, did not establish that the messages on Mr. Harper鈥檚 T-shirt 鈥渁re so offensive and demeaning that they interfere with the ability of homosexual students to partake of the educational environment.鈥�
The ruling drew strong reactions from various quarters.
鈥淭o censor a student鈥檚 T-shirt that addresses homosexuality or any other controversial subject undercuts the First Amendment,鈥� said Mathew D. Staver, the president of Liberty Counsel, an Orlando, Fla.-based legal organization that often represents students on issues of religious expression in the public schools.
Mr. Staver said that although students may not libel or defame their classmates, 鈥渟chools, especially high schools, need to teach the importance of vigorous speech.鈥�
But a representative of GLSEN, based in New York City, applauded the ruling for its recognition of the treatment gay students often face in school.
鈥淎nti-gay and lesbian harassment is one of the three leading types of bullying and harassment that takes place in schools,鈥� said Eliza Byard, the deputy executive director of GLSEN.
The 9th Circuit court, she said, had essentially decided that Mr. Harper鈥檚 T-shirt was 鈥渁 kind of unacceptable speech that crosses the line between proactive statements of belief and intimidating attacks by other students.鈥�
