Contents

1.  Judge Reinhardt’s Opinion of the Court (abridged)

2.  Judge Kozinski’s Dissent (abridged)

3.  Footnotes

Judge Reinhardt’s Opinion of the Court (abridged)

Edited by R. Shep Melnick. Find the unedited case on google scholar.

Harper v. Poway, 9th Circuit, 2006

REINHARDT, Circuit Judge:

May a public high school prohibit students from wearing T-shirts with messages that condemn and denigrate other students on the basis of their sexual orientation? Appellant in this action is a sophomore at Poway High School who was ordered not to wear a T-shirt to school that read, “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” handwritten on the front, and “HOMOSEXUALITY IS SHAMEFUL” handwritten on the back. He appeals the district court’s order denying his motion for a preliminary injunction. Because he is not likely to succeed on the merits, we affirm the district court’s order.

Factual Background

Poway High School has had a history of conflict among its students over issues of sexual orientation. In 2003, the School permitted a student group called the Gay-Straight Alliance to hold a “Day of Silence” at the School which, in the words of an Assistant Principal, is intended to “teach tolerance of others, particularly those of a different sexual orientation.” During the days surrounding the 2003 “Day of Silence,” [Footnote 1] a series of incidents and altercations occurred on the school campus as a result of anti-homosexual comments that were made by students. One such confrontation required the Principal to separate students physically. According to David LeMaster, a teacher at Poway, several students were suspended as a result of these conflicts. Moreover, a week or so after the “Day of Silence,” a group of heterosexual students informally organized a “Straight-Pride Day,” during which they wore T-shirts which displayed derogatory remarks about homosexuals. According to Assistant Principal Lynell Antrim, some students were asked to remove the shirts and did so, while others “had an altercation and were suspended for their actions.”

Because of these conflicts in 2003, when the Gay-Straight Alliance sought to hold another “Day of Silence” in 2004, the School required the organization to consult with the Principal to “problem solve” and find ways to reduce tensions and potential altercations. On April 21, 2004, the date of the 2004 “Day of Silence,” appellant Tyler Chase Harper wore a T-shirt to school on which “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED,” was handwritten on the front and “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27′” was handwritten on the back. There is no evidence in the record that any school staff saw Harper’s T-shirt on that day.

The next day, April 22, 2004, Harper wore the same T-shirt to school, except that the front of the shirt read “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED,” while the back retained the same message as before, “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27.'” LeMaster, Harper’s second period teacher, noticed Harper’s shirt and observed “several students off-task talking about” the shirt. LeMaster, recalling the altercations that erupted as a result of “anti-homosexual speech” during the previous year’s “Day of Silence,” explained to Harper that he believed that the shirt was “inflammatory,” that it violated the School’s dress code, and that it “created a negative and hostile working environment for others.” When Harper refused to remove his shirt and asked to speak to an administrator, LeMaster gave him a dress code violation card to take to the front office.

When Harper arrived at the front office, he met Assistant Principal Antrim. She told Harper that the “Day of Silence” was “not about the school promoting homosexuality but rather it was a student activity trying to raise other students’ awareness regarding tolerance in their judgement [sic] of others.” Antrim believed that Harper’s shirt “was inflammatory under the circumstances and could cause disruption in the educational setting.” Like LeMaster, she also recalled the altercations that had arisen as a result of anti-homosexual speech one year prior. According to her affidavit, she “discussed [with Harper] ways that he and students of his faith could bring a positive light onto this issue without the condemnation that he displayed on his shirt.” Harper was informed that if he removed the shirt he could return to class.

When Harper again refused to remove his shirt, the Principal, Scott Fisher, spoke with him, explaining his concern that the shirt was “inflammatory” and that it was the School’s “intent to avoid physical conflict on campus.” Fisher also explained to Harper that it was not healthy for students to be addressed in such a derogatory manner. According to Fisher, Harper informed him that he had already been “confronted by a group of students on campus” and was “involved in a tense verbal conversation” earlier that morning. The Principal eventually decided that Harper could not wear his shirt on campus, a decision that, he asserts, was influenced by “the fact that during the previous year, there was tension on campus surrounding the Day of Silence between certain gay and straight students.” Fisher proposed some alternatives to wearing the shirt, all of which Harper turned down. Harper asked two times to be suspended. Fisher “told him that [he] did not want him suspended from school, nor did [he] want him to have something in his disciplinary record because of a stance he felt strongly about.” Instead, Fisher told Harper that he would be required to remain in the front office for the remainder of the school day. . . . Harper was not suspended, no disciplinary record was placed in his file, and he received full attendance credit for the day.

On June 2, 2004, Harper filed a lawsuit in district court against Poway Unified School District and certain named individuals in their individual and official capacities. Harper alleged five federal causes of action – violations of his right to free speech, his right to free exercise of religion, the Establishment Clause, the Equal Protection Clause, and the Due Process Clause – and one state law claim . . .

Freedom of Speech Claim

Public schools are places where impressionable young persons spend much of their time while growing up. They do so in order to receive what society hopes will be a fair and full education – an education without which they will almost certainly fail in later life, likely sooner rather than later. . . . During the time they do – from first grade through twelfth – students are discovering what and who they are. Often, they are insecure. Generally, they are vulnerable to cruel, inhuman, and prejudiced treatment by others.

The courts have construed the First Amendment as applied to public schools in a manner that attempts to strike a balance between the free speech rights of students and the special need to maintain a safe, secure and effective learning environment. . . . This court has expressly recognized the need for such balance: “States have a compelling interest in their educational system, and a balance must be met between the First Amendment rights of students and preservation of the educational process.” Although public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Supreme Court has declared that “the First Amendment rights of students in public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.” Thus, while Harper’s shirt embodies the very sort of political speech that would be afforded First Amendment protection outside of the public school setting, his rights in the case before us must be determined “in light of those special characteristics.”

In Tinker, the Supreme Court confirmed a student’s right to free speech in public schools. In balancing that right against the state interest in maintaining an ordered and effective public education system, however, the Court declared that a student’s speech rights could be curtailed under two circumstances. First, a school may regulate student speech that would “impinge upon the rights of other students.” Second, a school may prohibit student speech that would result in “substantial disruption of or material interference with school activities.” Because, as we explain below, the School’s prohibition of the wearing of the demeaning T-shirt is constitutionally permissible under the first of the Tinker prongs, we conclude that the district court did not abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the merits of his free speech claim.

The Rights of Other Students

In Tinker, the Supreme Court held that public schools may restrict student speech which “intrudes upon … the rights of other students” or “collides with the rights of other students to be secure and to be let alone.” Harper argues that Tinker’s reference to the “rights of other students” should be construed narrowly to involve only circumstances in which a student’s right to be free from direct physical confrontation is infringed. . . .

This court has explained that vulgar, lewd, obscene, indecent, and plainly offensive speech “by definition, may well ‘impinge[] upon the rights of other students,'” even if the speaker does not directly accost individual students with his remarks. So too may other speech capable of causing psychological injury. The Tenth Circuit has held that the “display of the Confederate flag might …interfere with the rights of other students to be secure and let alone,” even though there was no indication that any student was physically accosted with the flag, aside from its general display. While “the precise scope of Tinker’s ‘interference with the rights of others’ language is unclear,” we unequivocally reject Harper’s overly narrow reading of the phrase.

We conclude that Harper’s wearing of his T-shirt “collides with the rights of other students” in the most fundamental way. Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses. As Tinker clearly states, students have the right to “be secure and to be let alone.” Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society. The “right to be let alone” has been recognized by the Supreme Court, of course, as “‘the most comprehensive of rights and the right most valued by civilized men.'” Hill v. Colorado Indeed, the “recognizable privacy interest in avoiding unwanted communication” is perhaps most important “when persons are ‘powerless to avoid’ it.” Because minors are subject to mandatory attendance requirements, the Court has emphasized “the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children – especially in a captive audience ….” Although name-calling is ordinarily protected outside the school context, “students cannot hide behind the First Amendment to protect their ‘right’ to abuse and intimidate other students at school.”

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. The 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. Indeed, studies demonstrate that “academic underachievement, truancy, and dropout are prevalent among homosexual youth and are the probable consequences of violence and verbal and physical abuse at school.” . . . . One study has found that among teenage victims of anti-gay discrimination, 75% experienced a decline in academic performance, 39% had truancy problems and 28% dropped out of school. Another study confirmed that gay students had difficulty concentrating in school and feared for their safety as a result of peer harassment, and that verbal abuse led some gay students to skip school and others to drop out altogether. Indeed, gay teens suffer a school dropout rate over three times the national average. . . . In short, it is well established that attacks on students on the basis of their sexual orientation are harmful not only to the students’ health and welfare, but also to their educational performance and their ultimate potential for success in life.

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. . . . To the contrary, the School had a valid and lawful basis for restricting Harper’s wearing of his T-shirt on the ground that his conduct was injurious to gay and lesbian students and interfered with their right to learn. In fact, California schools like Poway High are required by law “to minimize and eliminate a hostile environment on school grounds that impairs the access of pupils to equal educational opportunity.”

The dissent claims that we should not take notice of the fact that gay students are harmed by derogatory messages such as Harper’s because there is no “evidence” that they are in fact injured by being shamed or humiliated by their peers. It is simply not a novel concept, however, that such attacks on young minority students can be harmful to their self-esteem and to their ability to learn. As long ago as in Brown v. Board of Education, the Supreme Court recognized that “[a] sense of inferiority affects the motivation of a child to learn.” If a school permitted its students to wear shirts reading, “Negroes: Go Back To Africa,” no one would doubt that the message would be harmful to young black students. So, too, in the case of gay students, with regard to messages such as those written on Harper’s T-shirt.

The dissent takes comfort in the fact that there is a political disagreement regarding homosexuality in this country.. We do not deny that there is, just as there was a longstanding political disagreement about racial equality that reached its peak in the 1950’s and about whether religious minorities should hold high office that lasted at least until after the 1960 presidential election, or whether blacks or Jews should be permitted to attend private universities and prep schools, work in various industries such as banks, brokerage houses, and Wall Street law firms, or stay at prominent resorts or hotels. Such disagreements may justify social or political debate, but they do not justify students in high schools or elementary schools assaulting their fellow students with demeaning statements: by calling gay students shameful, by labeling black students inferior or by wearing T-shirts saying that Jews are doomed to Hell. Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong. To say that homosexuality is shameful is to say, necessarily, that gays and lesbians are shameful. There are numerous locations and opportunities available to those who wish to advance such an argument. It is not necessary to do so by directly condemning, to their faces, young students trying to obtain a fair and full education in our public schools.

Our dissenting colleague also appears to believe that the fact that Harper wore his T-shirt in response to a “Day of Silence” somehow lessens the injurious effect of his act because by participating in the gay rights event, gay students “perforce acknowledge that their status is not universally admired or respected.” This argument is completely without merit. The fact that gays, or for that matter blacks, Jews, or Latinos, recognize that they are the subject of prejudice and are not “respected” or considered equal by some in certain public schools in this country does not mean that they are not injured when the usually unspoken prejudice turns into harmful verbal conduct. Moreover, the dissent’s assertion that gay students may prefer to see the demeaning statements contained on Harper’s T-shirt rather than on bathroom walls makes even less sense. The First Amendment does not justify students launching such injurious and harmful personal attacks in either location.

What we hold in this opinion is a far cry from what the dissent suggests. We do not hold that schools may “define civic responsibility and then ban opposing points of view.” The question of what types of assemblies schools should or may conduct regarding controversial public issues or what types of speech students may otherwise generally engage in regarding such issues is not before us. Different circumstances require different results. We consider here only whether schools may prohibit the wearing of T-shirts on high school campuses and in high school classes that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students and that may cause them significant injury. We do not believe that the schools are forbidden to regulate such conduct. Nor, contrary to the dissent, do we believe that because a school sponsors or permits a “Day of Tolerance” or a “Day of Silence” minority students should be required to publicly “confront[]” and “refute” demeaning verbal assaults on them – that they may be left with no option other than to try to justify their sexual practices to the entire student body or explain to all their fellow students why they are not inferior or evil. The First Amendment does not require that young students be subjected to such a destructive and humiliating experience.

In his declaration in the district court, the school principal justified his actions on the basis that “any shirt which is worn on campus which speaks in a derogatory manner towards an individual or group of individuals is not healthy for young people ….” If, by this, the principal meant that all such shirts may be banned under Tinker, we do not agree. T-shirts proclaiming, “Young Republicans Suck,” or “Young Democrats Suck,” for example, may not be very civil but they would certainly not be sufficiently damaging to the individual or the educational process to warrant a limitation on the wearer’s First Amendment rights. Similarly, T-shirts that denigrate the President, his administration, or his policies, or otherwise invite political disagreement or debate, including debates over the war in Iraq, would not fall within the “rights of others” Tinker prong. [Footnote 2]

Although we hold that the School’s restriction of Harper’s right to carry messages on his T-shirt was permissible under Tinker, we reaffirm the importance of preserving student speech about controversial issues generally and protecting the bedrock principle that students “may not be confined to the expression of those sentiments that are officially approved.” It is essential that students have the opportunity to engage in full and open political expression, both in and out of the school environment. Engaging in controversial political speech, even when it is offensive to others, is an important right of all Americans and learning the value of such freedoms is an essential part of a public school education. Indeed, the inculcation of “the fundamental values necessary to the maintenance of a democratic political system” is “truly the ‘work of the schools.'” Limitations on student speech must be narrow, and applied with sensitivity and for reasons that are consistent with the fundamental First Amendment mandate. Accordingly, we limit our holding to instances of derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.[Footnote 3] Moreover, our decision is based not only on the type and degree of injury the speech involved causes to impressionable young people, but on the locale in which it takes place.. Thus, it is limited to conduct that occurs in public high schools (and in elementary schools). As young students acquire more strength and maturity, and specifically as they reach college age, they become adequately equipped emotionally and intellectually to deal with the type of verbal assaults that may be prohibited during their earlier years. Accordingly, we do not condone the use in public colleges or other public institutions of higher learning of restrictions similar to those permitted here.

Our dissenting colleague worries that offensive words directed at majority groups such as Christians or whites will not be covered by our holding. There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority. In any event, any verbal assault targeting majorities that might justify some form of action by school officials is more likely to fall under the “substantial disruption” prong of Tinker or under the Fraser rule permitting schools to prohibit “plainly offensive” speech.]

Finally, we emphasize that the School’s actions here were no more than necessary to prevent the intrusion on the rights of other students. Aside from prohibiting the wearing of the shirt, the School did not take the additional step of punishing the speaker: Harper was not suspended from school nor was the incident made a part of his disciplinary record.

Under the circumstances present here, we conclude that the School’s actions did not extend beyond the scope of the restrictions permitted by Tinker, and that the district court did not abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the merits of his free speech claim.

Viewpoint Discrimination

In reaching our decision that Harper may lawfully be prohibited from wearing his T-shirt, we reject his argument that the School’s action constituted impermissible viewpoint discrimination. The government is generally prohibited from regulating speech “when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” However, as the district court correctly pointed out, speech in the public schools is not always governed by the same rules that apply in other circumstances. Indeed, the Court in Tinker held that a school may prohibit student speech, even if the consequence is viewpoint discrimination, if the speech violates the rights of other students or is materially disruptive. . . . Thus, pursuant to Tinker, courts have allowed schools to ban the display of Confederate flags despite the fact that such a ban may constitute viewpoint discrimination. While the Confederate flag may express a particular viewpoint, “it is not only constitutionally allowable for school officials” to limit the expression of racially explosive views, “it is their duty to do so.”

The dissent claims that although the School may have been justified in banning discussion of the subject of sexual orientation altogether, it cannot “gag[] only those who oppose the Day of Silence.” As we have explained, however, although Tinker does not allow schools to restrict the non-invasive, non-disruptive expression of political viewpoints, it does permit school authorities to restrict “one particular opinion” if the expression would “impinge upon the rights of other students” or substantially disrupt school activities. Accordingly, a school may permit students to discuss a particular subject without being required to allow them to launch injurious verbal assaults that intrude upon the rights of other students.

. . . public schools may permit, and even encourage, discussions of tolerance, equality and democracy without being required to provide equal time for student or other speech espousing intolerance, bigotry or hatred. As we have explained, 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.” Such expressions would be “wholly inconsistent with the ‘fundamental values’ of public school education.” Similarly, a school that permits a “Day of Racial Tolerance,” may restrict a student from displaying a swastika or a Confederate Flag. In sum, a school has the right to teach civic responsibility and tolerance as part of its basic educational mission; it need not as a quid pro quo permit hateful and injurious speech that runs counter to that mission.

Free Exercise of Religion Claim

Harper also contends that the district court erred because he was entitled to a preliminary injunction as a result of the School’s violation of his rights under the Free Exercise Clause. He asserts that his wearing of the T-shirt was “motivated by sincerely held religious beliefs” regarding homosexuality and that the School “punished” him for expressing them, or otherwise burdened the exercise of those views. Additionally, Harper argues that the School “attempted to change” his religious views and that this effort violated both the Free Exercise Clause and the Establishment Clause.

. . . Harper does not contend that the School’s prohibition against his wearing his T-shirt was motivated by other than secular reasons or that it was applied to him because of his religious views. Nor is there anything in the record to suggest that other students wearing T-shirts similarly demeaning of gay and lesbian members of the student body would be treated differently, Christians or not. Under Smith, Harper’s claim would surely fail. Harper asserts, however, that we should apply Sherbert’s strict scrutiny test to his free exercise claim because his is a “hybrid” claim involving the Free Exercise Clause in conjunction with other constitutional claims. The School disagrees, arguing that the district court properly applied rational basis review under Smith because its prohibition of Harper’s speech involved a “valid and neutral [rule] of general applicability.”

. . . Despite Harper’s allegation that the School “punished” him for expressing his religious views, the record demonstrates the contrary: the School did not punish Harper at all. It simply prohibited him from wearing the offensive and disruptive shirt and required him to refrain from attending class for a portion of a day, if he insisted on continuing to wear it. Nor did the restriction imposed on Harper’s wearing of the T-shirt constitute a substantial limitation on his right to express his religious views. No one has the right to proclaim his views at all times in all manners in all places, regardless of the circumstances, and Harper does not contend that his religion suggests otherwise. Harper remains free to express his views, whatever their merits, on other occasions and in other places. The prohibition against the wearing of a T-shirt in school does not constitute a substantial burden on the exercise of his religious beliefs.

Even if a religious creed, or an individual’s interpretation of that creed, could be said to require its adherents to proclaim their religious views at all times and in all places, and to do so in a manner that interferes with the rights of others, the First Amendment would not prohibit the state from banning such disruptive conduct in certain circumstances, including on a high school campus. The Constitution does not authorize one group of persons to force its religious views on others or to compel others to abide by its precepts. Nor does it authorize individuals to engage in conduct, including speech, on the grounds of public schools, that is harmful to other students seeking to obtain a fair and equal education – even if those individuals hold a sincere belief that the principles of their religion require them to discriminate against others, or to publicly proclaim their discriminatory views whenever they believe that “evil” practices are being condoned. . . . Schools may prohibit students and others from disrupting the educational process or causing physical or psychological injury to young people entrusted to their care, whatever the motivations or beliefs of those engaged in such conduct. Indeed, the state’s interest in doing so is compelling.

. . . Moreover, school officials’ statements and any other school activity intended to teach Harper the virtues of tolerance constitute a proper exercise of a school’s educational function, even if the message conflicts with the views of a particular religion. A public school’s teaching of secular democratic values does not constitute an unconstitutional attempt to influence students’ religious beliefs. Rather, it simply reflects the public school’s performance of its duty to educate children regarding appropriate secular subjects in an appropriate secular manner. As we have reiterated earlier, “the inculcation of fundamental values necessary to the maintenance of a democratic political system” is “truly the ‘work of the schools.'” Public schools are not limited to teaching materials that are consistent with all aspects of the views of all religions. So long as the subject and materials are appropriate from an educational standpoint and the purpose of the instruction is secular, the school’s teaching is not subject to a constitutional objection that it conflicts with a view held by members of a particular religion. There is no evidence here that the school officials’ comments were associated with a religious, as opposed to a secular, purpose. Their affidavits demonstrate that the School acted in order to maintain a secure and healthy learning environment for all its students, not to advance religion.

The Constitution does not preclude school districts from teaching the essential elements of democracy or otherwise performing their proper educational mission simply because some individuals or groups may assert that their religious views are inconsistent with the lessons taught as a part of that mission. Accordingly, we affirm the district court’s decision that Harper was not entitled to a preliminary injunction on the basis of his free exercise claim.

Judge Kozinski’s Dissent (abridged)

Edited by R. Shep Melnick. Find the unedited case on google scholar.

DISSENT of Judge KOZINSKI

While I find this a difficult and troubling case, I can agree with neither the majority’s rationale nor its conclusion. On the record to date, the school authorities have offered no lawful justification for banning Harper’s t-shirt and the district court should therefore have enjoined them from doing so pending the outcome of this case. Harper, moreover, raised a valid facial challenge to the school’s harassment policy, and the district court should have enjoined the policy as well.

If the school’s ban of the shirt is to be upheld, then, it must be because it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” School authorities may ban student speech based on the existence of “any facts which might reasonably [lead] school authorities to forecast substantial disruption.” While we do not require school officials to be certain that disruption will occur, they must present “evidence that [the ban] is necessary to avoid material and substantial interference with schoolwork or discipline.”

The school authorities here have shown precious little to support an inference that Harper’s t-shirt would “materially disrupt[] classwork.” One teacher, David LeMaster, said that several students in class were “off-task talking about [the] content of “Chase’s shirt” when they should have been working.” Surely, however, it is not unusual in a high school classroom for students to be “off-task.” The scene a faire of high school students bored or distracted in class is a cliche. (See, e.g., Ferris Bueller’s Day Off; J.K. Rowling, Harry Potter and the Half-Blood Prince; Buffy the Vampire Slayer; Beverly Hills 90210; The O.C.; Saved by the Bell; Veronica Mars; and zillions more.) LeMaster gives no indication that the distracted students refused to get back on task once they were admonished, or that the t-shirt caused a commotion or otherwise materially interfered with class activities. As this is the only evidence that Harper’s t-shirt interfered with classroom learning, I find it ludicrously weak support for banning Harper’s t-shirt on the ground that it would “materially disrupt[] classwork.”

The remaining two pieces of evidence presented by the defendants do not involve disruption of classwork, and thus must be judged by the “substantial disorder” standard. School authorities have far less latitude to ban speech that does not interfere with learning situations. Between classes, students are free – indeed encouraged – to engage in discussions that are not strictly school related. Politics, sports, movies, music and personal matters are the ordinary subjects of discourse in high school corridors and lunch rooms. Occasionally such discussions can become heated, but so long as they don’t escalate into violence or the threat of violence, and do not otherwise interfere with school operations, they cause no disruption of the school environment.

Defendants point to Harper’s own report that “he [had been] involved in a tense verbal conversation with a group of students” earlier that day, but this is hardly the stuff of which substantial disorder is made.. People – judges even – often have strong views and their discussions will naturally reflect this intensity of feeling. There is nothing at all wrong with that, and it normally does not lead to substantial disorder. There is no indication that Harper’s discussion turned violent or disrupted school activities. There is no evidence that it involved shouting or threats, or that it interfered with the passage of students to and from class. The discussion, tense though it may have been, did not have to be broken up by school authorities; rather, it seems to have come to a peaceful conclusion. The best proof that this – tense verbal conversation – did not cause substantial disorder is that the school authorities knew nothing about the incident until Harper himself reported it. The only thing one can infer from this evidence is that, whatever strong feelings Harper’s t-shirt may have aroused, it did not cause any disruption of school activities, substantial or otherwise.

The second piece of evidence on which the school authorities rely doesn’t involve Harper at all. It consists of surprisingly vague references to some incidents that had occurred a year earlier, “during the days surrounding the Day of Silence between certain gay and straight students.” . . . Evidence that derogatory messages on t-shirts had resulted in physical altercations between students in the past certainly could be relevant in determining whether Harper’s message would be likely to cause such disruption in the future. Unfortunately, however, it is not clear from these declarations that the messages on the t-shirts were in any way involved in the previous year’s altercation . . . For all we know, the previous year’s t-shirts contained invective, profanity or epithets; they may have called for violence against homosexuals. Nor do we know whether the altercations in question were caused by the t-shirts alone, or by a combination of the t-shirts and oral taunts by those wearing the shirts or by those who opposed them. In short, without knowing a great deal more about the situation in the previous year — information the school authorities surely had available and could have put into the record — I cannot say that defendants reasonably concluded that Harper’s wearing of this t-shirt was likely to cause substantial disruption.

There is, in fact, persuasive evidence that it would not. I have already mentioned the apparently peaceful confrontation Harper had with other students that very day; while words were exchanged, the students managed the situation well and without intervention from the school authorities. No doubt, everyone learned an important civics lesson about dealing with others who hold sharply divergent views. Moreover, Harper wore a t-shirt with substantially the same message the entire previous day, yet there was no disruption. S While I agree that school officials need not wait for students to come to blows, their determination of likely disruption must be reasonable. On this record, I cannot find that it was.

But there is a more fundamental issue here. The record reveals quite clearly that Harper’s t-shirt was not an out-of-the-blue affront to fellow students who were minding their own business. 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.[Footnote 4] The Day of Silence is a protest sponsored by the Gay, Lesbian and Straight Education Network (GLSEN). According to a GLSEN press release, the Day of Silence is “an annual, national student-led effort in which participants take a vow of silence to peacefully protest the discrimination and harassment faced by lesbian, gay, bisexual and transgender (LGBT) youth in schools.” Press Release, GLSEN. The point of this protest, as I understand it, is to promote tolerance toward all students, regardless of their sexual orientation.

Tolerance is a civic virtue,[Footnote 5] but not one practiced by all members of our society toward all others. This may be unfortunate, but it is a reality we must accept in a pluralistic society.[Footnote 6] Specifically, tolerance toward homosexuality and homosexual conduct is anathema to those who believe that intimate relations among people of the same sex are immoral or sinful. So long as the subject is kept out of the school environment, these differences of opinion need not clash. But a visible and highly publicized political action by those on one side of the issue will provoke those on the other side to express a different point of view, if only to avoid the implication that they agree.).

Given the history of violent confrontation between those who support the Day of Silence and those who oppose it, the school authorities may have been justified in banning the subject altogether by denying both sides permission to express their views during the school day. See, e.g., West v. Derby Unified Sch. (upholding ban on items that give rise to racial tension such as Confederate flags and Malcolm X t-shirts). I find it far more problematic — and more than a little ironic — to try to solve the problem of violent confrontations by gagging only those who oppose the Day of Silence and the point of view it represents. Or, as Judge Rosen put it “that Defendants can say with apparent sincerity that they were advancing the goal of promoting ‘acceptance and tolerance for minority points of view’ by their demonstrated intolerance for a viewpoint that was not consistent with their own is hardly worthy of serious comment.”

I cannot imagine that my colleagues would approve this in other situations. Say, for example, one school group — perhaps the Young Republicans — were to organize a day of support for the war in Iraq by encouraging students to wear a yellow armband. And suppose that other students responded by wearing t-shirts with messages such as “Marines are Murderers” and “U.S. Bombs Kill Babies.” If a student whose brother was killed in Iraq assaulted a student wearing one of the anti-war t-shirts, would we approve a school’s response that banned the t-shirts but continued to permit the yellow armbands? See R.A.V. v. City of Saint Paul, (“[The government] has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”). Not to worry, says the majority, because students can still sport t-shirts that criticize “the President, his administration, or his policies, or otherwise invite political disagreement or debate.” But acceptance of homosexuality is a political disagreement and debate. It’s not at all clear to me how one can criticize public officers and their policies without also addressing the controversial policies they adopt. For example, in 2004, San Francisco mayor Gavin Newsom issued marriage licenses to nearly 4,000 gay and lesbian couples. While some people view this as a courageous and principled action, others consider it an abomination. It’s not at all clear to me how those in the latter camp could go about expressing their vehement disagreement with Mayor Newsom’s policy without also expressing disdain for those who turned out at City Hall to take advantage of the policy.

Of 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. To quote Judge Rosen once again, “no matter how well-intentioned the stated objective, once schools get into the business of actively promoting one political or religious viewpoint over another, there is no end to the mischief that can be done in the name of good intentions.”

Tinker does contain an additional ground for banning student speech, namely where it is an “invasion of the rights of others.” The school authorities suggest that Harper’s t-shirt violates California Education Code § 201(a), which provides that “all pupils have the right to participate fully in the educational process, free from discrimination and harassment.” Defendants cite no California case holding that the passive display by one student of a message another student finds offensive violates this provision, and I am reluctant to so conclude on my own. The interaction between harassment law and the First Amendment is a difficult and unsettled one because much of what harassment law seeks to prohibit, the First Amendment seems to protect. Certainly, state law cannot trump the First Amendment by defining “harassment” as any conduct that another person finds offensive; far too much core First Amendment speech could thus be squelched.

Harassment law might be reconcilable with the First Amendment, if it is limited to situations where the speech is so severe and pervasive as to be tantamount to conduct. . . . it is quite clear that Harper’s lone message was not sufficiently severe and pervasive to meet the standard articulated in [by the Supreme Court.] Rather, it seems more like the “simple acts of teasing and name-calling,” described by the Supreme Court as non-actionable. The “rights of others” language in Tinker can only refer to traditional rights, such as those against assault, defamation, invasion of privacy, extortion and blackmail, whose interplay with the First Amendment is well established. Surely, this language is not meant to give state legislatures the power to define the First Amendment rights of students out of existence by giving others the right not to hear that speech. Otherwise, a state legislature could effectively overrule Tinker by granting students an affirmative right not to be offended. To the extent that state law purports to prohibit such language in the school context, it is patently unconstitutional.

Nor can I join my colleagues in concluding that Harper’s t-shirt violated the rights of other students by disparaging their homosexual status. As I understand the opinion, my colleagues are saying that messages such as Harper’s are so offensive and demeaning that they interfere with the ability of homosexual students to partake of the educational environment. This is not a position briefed or argued by any of the parties, and no one introduced any evidence in support of, or opposition to, this proposition. The school authorities did not try to justify their actions on this ground; instead, they argued that they can ban any t-shirt derogatory to another individual, a proposition that the majority rejects.

Such sua sponte lawmaking raises many problems, the first of which is that it finds no support in the record. What my colleagues say could be true, but the only support they provide are a few law review articles, a couple of press releases by advocacy groups and some pop psychology. Aside from the fact that published articles are hardly an adequate substitute for record evidence, the cited materials are just not specific enough to be particularly helpful. None would seem to meet the standard of Daubert v. Merrell Dow Pharmaceuticals, Inc., (1993).

The first article, written by physicians but apparently not peer-reviewed, makes a general statement to the effect that academic under-achievement and other problems of homosexual youths “are the probable consequence of violence and verbal and physical abuse at school.” The article does not explain what the authors mean by “verbal . . . abuse,” so it’s not clear that Harper’s t-shirt is even covered by the article’s findings. Nor does the article explain the degree to which statements, as opposed to physical abuse, are responsible for the ill effects it discusses. The second article, written by a lawyer, not a health-care professional, merely points to general problems suffered by gay and lesbian youths during their school years — problems that are reinforced by a variety of school practices and policies. The other articles the majority cites also focus on physical abuse or threats, which the school can and should stamp out in a viewpoint neutral way. The majority finally resorts to press releases from advocacy groups — hardly a source “whose accuracy cannot reasonably be questioned.” What the materials the majority cites do establish is that the success of gay and lesbian teens in school is a complicated phenomenon, influenced by many factors. Even taking the sources on their own terms, none provides support for the notion that disparaging statements by other students, in the context of a political debate, materially interfere with the ability of homosexual students to profit from the school environment.

Nor do I find the proposition at the heart of the majority’s opinion — that homosexual students are severely harmed by any and all statements casting aspersions on their sexual orientation — so self-evident as to require no evidentiary support. We take judicial notice of facts that aren’t reasonably subject to dispute — gravity, the temperature at which ice melts, that commercial goods cost money, that time flows forward but not backward. But the fact that we can take judicial notice of certain indisputable facts does not mean that all facts are indisputable. Predicting the effect of certain kinds of statements on the learning ability of high school students is simply not the kind of “fact” that is judicially noticeable under any fair reading of Federal Rule of Evidence 201. Even the articles that the majority cites admit that the research on these effects is not unanimous. We have no business assuming without proof that the educational progress of homosexual students would be stunted by Harper’s statement.

I find it significant, moreover, that Harper did not thrust his view of homosexuality into the school environment as part of a campaign to demean or embarrass other students. Rather, he was responding to public statements made by others with whom he disagreed. Whatever one might think are the psychological effects of unprovoked demeaning statements by one student against another, the effects may be quite different when they are part of a political give-and-take. By participating in the Day of Silence activities, homosexual students perforce acknowledge that their status is not universally admired or accepted; the whole point of the Day of Silence, as I understand it, is to dispute views like those characterized by Harper’s t-shirt. Supporters of the Day of Silence may prefer to see views such as Harper’s channeled into public discourse rather than officially suppressed but whispered behind backs or scribbled on bathroom walls. Confronting — and refuting — such views in a public forum may well empower homosexual students, contributing to their sense of self-esteem.

Beyond the question of evidentiary support, I have considerable difficulty understanding the source and sweep of the novel doctrine the majority announces today. Not all statements that demean other students can be banned by schools; the majority is very clear about this. The new doctrine applies only to statements that demean students based on their “minority status such as race, religion, and sexual orientation.” Id. at 31-32.[Footnote 7] Is this a right created by state law? By federal law? By common law? And if interference with the learning process is the keystone to the new right, how come it’s limited to those characteristics that are associated with minority status? Students may well have their self-esteem bruised by being demeaned for being white or Christian, or having bad acne or weight problems, or being poor or stupid or any one of the infinite number of characteristics that will not qualify them for minority status. Under the rule the majority announces today, schools would be able to ban t-shirts with pictures of Mohammed wearing a bomb turban but not those with pictures of a Crucifix dipped in urine — yet Muslim and Christian children, respectively, may have their learning equally disrupted.

Even the concept of minority status is not free from doubt. In defining what is a minority — and hence protected — do we look to the national community, the state, the locality or the school? In a school that has 60 percent black students and 40 percent white students, will the school be able to ban t-shirts with anti-black racist messages but not those with anti-white racist messages, or vice versa? Must a Salt Lake City high school prohibit or permit Big Love t-shirts?

And at what level of generality do we define a minority group? If the Pope speaks out against gay marriage, can gay students wear to school t-shirts saying “Catholics Are Bigots,” or will they be demeaning the core characteristic of a religious minority? And, are Catholics part of a monolithic Christian majority, or a minority sect that has endured centuries of discrimination in America?

Finally, I have considerable difficulty with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school environment because the opposing point of view is too extreme or demeaning. As Judge Gilman said in his persuasive dissent in Boroff v. Van Wert City Board of Ed., “school officials are not free to decide that only one side of a topic is open for discussion because the other side is too repugnant or demoralizing to listen to.” I couldn’t have said it better.

The fundamental problem with the majority’s approach is that it has no anchor anywhere in the record or in the law. It is entirely a judicial creation, hatched to deal with the situation before us, but likely to cause innumerable problems in the future. Respectfully, I cannot go along.

. . . The problems posed by the policy here, not only for Harper but for many other students, are not theoretical or trivial. Assuming, as we must, that on the next Day of Silence Harper will not be allowed to wear a t-shirt expressing his interpretation of Romans 1:27, what exactly can he say or wear? Would a t-shirt quoting Romans 1:27 be permissible, or is it prohibited because a homosexual student might interpret it as “motivated by bias against him/her”? How about a t-shirt with the message “Straight and Proud of It”? Is this a protected “positive” message, or is it the dreaded “exalting own . . . sexual orientation” and therefore hate behavior? Indeed, is there anything at all that Harper and others of his view can say or do to distance themselves from the Day of Silence proceedings without running the risk that another student will take it personally? May Harper have a discussion at lunchtime where he says: “Homosexuality is sinful”? On his way home from school, may he tell another student a joke disparaging the movie Brokeback Mountain? Once he gets home, can he post criticism of the Day of Silence on his MySpace page? Given the broad language of the policy, I believe [**110] any and all of these could be punished by the school authorities as hate behavior.

Nor is Harper alone. Consider those who participate in the Day of Silence. They, of course, believe they are doing so to promote tolerance and equality. But others — like Harper — might view it as an effort to exalt homosexuality and denigrate their own sexual orientation and religious beliefs. Relying on the same overbroad policy that the school used to ban Harper’s t-shirt, the school could, if it chose, easily ban the Day of Silence activities as demeaning the sexual orientation of straight students, or the religious beliefs of Christians like Harper.

All manner of other speech, from the innocuous to the laudable, could also be banned or punished under the school’s hate speech policy. May a student wear a Black Pride t-shirt, or does this denigrate white and Asian students? May a student wear a t-shirt saying “I love Jesus,” or will this make Jews, Muslims and Druids feel it’s an attack on their religions? May a student wear a t-shirt saying “Proud to be a Turk,” or will this cause bad vibrations for the Greeks and Armenians in the school? Will a student be disciplined for disruption if, during a lunch-time discussion, he argues forcefully that the State of Israel oppresses Palestinians and, when called on it, defends himself, saying: “I said it because I’m proud to be a Muslim.”?

The types of speech that could be banned by the school authorities under the Poway High School hate policy are practically without limit. Any speech code that has at its heart avoiding offense to others gives anyone with a thin skin a heckler’s veto — something the Supreme Court has not approved in the past.

Footnotes

[Footnote 1] On the “Day of Silence,” participating students wore duct tape over their mouths to symbolize the silencing effect of intolerance upon gays and lesbians; these students would not speak in class except through a designated representative. Some students wore black T-shirts that said “National Day of Silence” and contained a purple square with a yellow equal sign in the middle. The Gay-Straight Alliance, with the permission of the School, also put up several posters promoting awareness of harassment on the basis of sexual orientation.

[Footnote 2]: The dissent suggests that our decision might somehow allow a school to restrict student T-shirts that voice strongly-worded opposition to the war in Iraq. That is not so. Our colleague ignores the fact that our holding is limited to injurious speech that strikes at a core identifying characteristic of students on the basis of their membership in a minority group. The anti-war T-shirts posited by the dissent constitute neither an attack on the basis of a student’s core identifying characteristic nor on the basis of his minority status.

[Footnotes 3] We do not consider here whether remarks based on gender warrant similar treatment, preferring to leave that question to another time. We recognize, however, that problems of gender discrimination remain serious and that they exist throughout learning institutions, from the public and religious schools to institutions of higher learning, not excluding the most prominent institutions in the nation.

[Footnote 4] Assistant Principal Antrim in her declaration refers to the Straight-Pride Day the previous year as “unsanctioned,” suggesting a contrast with the Day of Silence. The school authorities have a close working relationship with the Gay-Straight Alliance (GSA), the campus club that sponsors the Day of Silence. After last year’s “tension” over the Day of Silence, the principal and the associated student body director worked with the GSA throughout the year to set “clearer guidelines” for this year’s Day of Silence, and to “problem solve” tension among students about these issues.

[Footnote 5] The majority waxes eloquent about the right of schools “to teach civic responsibility and tolerance as part of its basic educational mission,” while suppressing other points of view. But one man’s civic responsibility is another man’s thought control. For example, respect for the Constitution and support for the military are commonly regarded as civic virtues. But laws requiring schools receiving federal funding to hold a Constitution Day or to give military recruiters the names, addresses and phone numbers of their students have proved quite controversial. Having public schools, and those who fund them, define civic responsibility and then ban opposing points of view, as the majority seems willing to do, may be an invitation to group-think.

[Footnote 6] Indeed, tolerance may not always be a virtue. Tolerating wicked conduct, bigotry or malicious gossip, for example, may not be in the least commendable. Then there is the question of whether we should tolerate intolerance, a question as imponderable as a Mobius strip. Whether tolerance is a good or a bad thing may turn on what we think about the thing being tolerated.

[Footnote 7] The majority equivocates a bit on this point. At one place it states that “public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses.” Read broadly, this would protect students from being disparaged based on any characteristic that two of my colleagues consider to be “core.” Presumably this could include race, nationality, sex, weight class, hair color and religion — but not political affiliation. Next, the majority notes that “schools may prohibit the wearing of T-shirts on high school campuses and in high school classes that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students and that may cause them significant injury.” Later on, however, the opinion limits the new doctrine to core minority characteristics.. I read the majority’s last formulation to be the one it intends, else my colleagues would pretty much have ripped the heart out of Tinker.

Canter, Andrew and Gabriel Pardo. “The Court’s Missed Opportunity in Harper v. Poway.” BYU Educational Law Journal 1 (2008): 125-148.

Find it on BYU Law.

Gilreath, Shannon. “Tell Your Faggot Friend He Owes Me $500 for My Broken Hand’: Thoughts on a Substantive Equality Theory of Free Speech.” Wake Forest Law Review 44 (2009): 101-159.

Find it at SSRN’s online Research Library.

“The First Amendment and Hate Speech,” We the People, National Constitution Center Podcast

Keith Whittington and Shannon Gilreath discuss Harper v. Poway beginning at 10:44.