Harper v. Poway Unified Sch. Dist., No. 04-1103 (S.D. Cal. Feb 11. 2008)
A California federal district court did not change its ruling in favor of a school district in a suit based on a student’s claim that the school district violated her free speech and free exercise of religion rights when it prohibited her from wearing a T-shirt expressing religious objection to homosexuality. The suit began in 2004 after the district barred the current plaintiff’s brother from wearing a similar T-shirt. In its first ruling, the district court refused to lift the ban on the T-shirt. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court. The U.S. Supreme Court subsequently vacated and remanded the Ninth Circuit ruling, declaring it moot because the district court had dismissed the original plaintiff in January 2007. When the district court expressed it willingness to entertain the current plaintiff’s request for reconsideration, the Ninth Circuit remanded the case to the district court.
In addressing the claim that the ban on wearing the T-shirt to school violated her free speech rights, the district court adopted the Ninth Circuit’s reliance on the second prong in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), which provides schools may prohibit speech that “intrudes upon … the rights of other students. The appeals court had reasoned that the school’s restrictions on the messages on the T-shirt were justified under Tinker because “harassment on the basis of sexual orientation adversely affects the rights of public high school students and because the T-shirt worn by [the student] fell under the category of T-shirts that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students ... that may cause them significant injury.” The district court rejected the plaintiff’s argument that the standard enunciated by the appeals court is “overly-broad [and] viewpoint discriminatory and . . . implementation of such a standard would categorically remove[] certain viewpoints from the reach of First Amendment protection on campus.” The district court pointed out that that the rationale behind the Ninth Circuit’s decision allowing school districts to restrict the speech based on schools’ need to insulate vulnerable students from harmful speech is supported by the Supreme Court’s recent ruling in Morse v. Frederick, 127 S.Ct. 2618 (2007). In particular, Morse’s reasoning that school’s may restrict speech, such as speech promoting drug use, that is harmful, “lends support for a finding that the speech at issue in the instant case may properly be restricted by school officials if it is considered harmful.” Like the Ninth Circuit, the district court concluded that the school was justified in restricting the speech on the T-shirt based on the potential harm it might cause to gay students because of the message’s demeaning nature. It concluded that “a school’s interest in protecting homosexual students from harassment is a legitimate pedagogical concern that allows a school to restrict speech expressing damaging statements about sexual orientation and limiting students to expressing their views in a positive manner.” Regarding the free exercise of religion claim, the district court, having found that the plaintiff failed to present any new or additional evidence to contradict the Ninth Circuit’s previous findings, concluded the school district’s actions survived a strict scrutiny analysis because there was no evidence the school compelled “‘affirmation of a repugnant belief,’ ‘penalize[d] or discriminate[d] against [plaintiff] because [she] hold[s] religious views abhorrent to the authorities,’ or ‘condition[ed] the availability of benefits upon [her] willingness to violate a cardinal principle of [her] religious faith.’”
Harper v. Poway Unified Sch. Dist., No. 04-1103 (S.D. Cal. Feb 11. 2008)
[Editor’s Note: The entire history of the case is available starting below.]
NSBA School Law pages on Harper v. Poway Unified Sch. Dist.