A suburban San
Diego teenager who was barred from wearing a T-shirt with
antigay rhetoric to class lost a bid to have his high
school's dress code suspended Thursday after a federal
appeals court ruled that the school could restrict
what students wear to prevent disruptions. The ruling by
the San Francisco-based ninth U.S. circuit court of
appeals addressed only the narrow issue of whether the
dress code should be unenforced pending the outcome of
the student's lawsuit.
A majority of
judges 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 Poway Unified School District in
San Diego federal court after the principal at Poway
High School refused to let him attend class wearing
the T-shirt.
Harper was a
sophomore at Poway High in 2004 when he wore the T-shirt one
day after the school's Gay-Straight Alliance participated in
the nationwide 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 School'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.
On Thursday the
three-judge appeals court panel 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, written by Judge Stephen Reinhardt and joined
by Judge Sydney Thomas for a 2-1 ruling, 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 ninth circuit
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 may wait until the main
case is 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." (AP)
