Harper v. Poway Unified School District, No. 04-57037 (9th Cir. July 31, 2006)
A majority of the active judges sitting on the U.S. Court of Appeals for the Ninth Circuit has denied a request for an en banc rehearing of a case involving a high school student who was prohibited from wearing a T-shirt expressing religious condemnation of homosexuality to school. In an en banc hearing, the entire appeals court reconsiders a decision made by a three-judge panel of the court. In April a Ninth Circuit panel upheld, 2-1, a California federal district court’s refusal to issue a preliminary injunction ordering a school district to allow the student to wear the T-shirt. This latest order denying the rehearing contained two concurring opinions and one dissent. Judge Stephen Reinhardt’s concurring opinion concluded that school officials’ ban on the T-shirt was justified under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), stating that "it is surely not beyond the authority of local school boards to attempt to protect young minority students against verbal persecution, and the exercise of that authority by school boards is surely consistent with Tinker’s protection of the right of individual students ‘to be secure and to be let alone.’" The other concurring opinion, by Judge Ronald Gould, characterized the message on the T-shirt as a form of hate speech akin to a burning cross, which under U.S. Supreme Court precedent is not entitled to the "full protection of the First Amendment in the context of the school environment, where administrators have a duty to protect students from physical or psychological harms." Judge Diarmuid O’Scanlain’s dissent argued that the majority was attempting to expand Tinker’s "right to be left alone" into "the right not to be offended," which amounts to impermissible viewpoint discrimination. His dissent contended that the school officials’ actions constituted favoring one side in the debate over the morality of homosexuality over the other side, in a "dangerous retreat from our tradition" of First Amendment viewpoint neutrality. "No Supreme Court decision empowers our public schools to engage in such censorship nor has gone so far in favoring one viewpoint over another," he argued.
Harper v. Poway Unified School District, No. 04-57037 (9th Cir. July 31, 2006)
[Link to full opinion]
[Editor’s Note: For background on the case, including summaries of the Ninth Circuit panel and district court decisions, access the link below.]
[NSBA School Law pages on Harper v. Poway USD]