Harper v. Poway Unified School District, No. 04-57037 (9th Cir. Apr. 20, 2006)
The U.S. Court of Appeals for the Ninth Circuit has upheld a California federal district court’s refusal to issue a preliminary injunction ordering a school district to allow a student to a wear a T-shirt with a message condemning homosexuality. Tyler Chase Harper (Chase), a sophomore at Poway High School, wore a shirt inscribed with the words "Homosexuality Is Shameful" during a "Day of Silence," an observance in which students remain silent to show support for tolerance of homosexuality. When he was suspended for violating a school policy against "hate behavior including derogatory connotations directed against sexual orientation," he sued Poway Unified School District (PUSD) and school officials. The district court ruled that Chase stated valid legal claims that PUSD had violated his First Amendment rights to free speech, free exercise of religion, and freedom from establishment of religion, but not that PUSD also violated his Fourteenth Amendment rights to equal protection and due process. However, the court declined to issue a preliminary injunction barring the school district from enforcing its ban while the lawsuit proceeded. Chase appealed this refusal.
The Ninth Circuit affirmed the district court’s decision and remanded the case. In considering this appeal of the initial procedural decision, the appellate court focused on whether Chase had demonstrated that he was likely to succeed on the merits of his claims. Addressing the free speech claim first, the Ninth Circuit relied on the U.S. Supreme Court’s ruling in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), to conclude that Chase had failed to demonstrate the necessary likelihood of success on the merits. Unlike the district court, however, the Ninth Circuit did not rely on the portion of Tinker that upholds school officials’ authority to prohibit otherwise constitutionally protected speech that would substantially disrupt or materially interfere with school activities. Rather, the court looked to the part of Tinker that upholds school officials’ authority to restrict student speech that "intrudes upon the rights of other students" or "collides with the rights of other students to be secure and to be let alone." The court found that the T-shirt’s derogatory message was a psychological attack on a minority group that historically has been subject to verbal and physical abuse. As a result, school officials had "a valid and lawful basis for restricting [Chase’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." However, the appellate court cautioned that its holding was limited "to instances of derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation."
Because the court disposed of the free speech claim on the Tinker’s "rights of others" prong, it declined to address Tinker’s "substantial disruption" prong directly. However, in a footnote it distinguished the present case from its own recent decision in Frederick v. Morse, 439 F.3d 1114 (9th Cir. 2006), which involved the suspension of a student for displaying a banner off campus that advocated drug use. In Frederick the court had ruled that the suspension could not be justified on the basis of Tinker’s "substantial disruption" prong. The present case differed from Frederick in four fundamental ways, the court reasoned. First, Frederick did not address Tinker’s "intrudes on the rights of others" prong at all. Second, in Frederick the court concluded the school’s action did not meet the "substantial disruption" prong because school officials conceded they suspended the student out of concern that the banner promoted a social message contrary to the one favored by the school, whereas in the present case school officials presented evidence that they banned Chase’s T-shirt because they expected it would cause disruption. Third, the student speech in Frederick occurred off campus at a noncurricular event only partially supervised by school officials, while in the present case the student wore the T-shirt not only on-campus but in the classroom. Finally, in the present case school officials utilized the least restrictive means of eliminating the offending conduct by banning the shirt, while in Frederick school officials imposed the harsher penalty of suspension. The Ninth Circuit also rejected Chase’s claim that the school engaged in impermissible viewpoint discrimination for free speech purposes. Tinker expressly countenances viewpoint discrimination where the speech in question violates the rights of others or is materially disruptive, the court noted. Schools are not required to tolerate student speech that is inconsistent with their basic educational mission, such as promoting tolerance for those with different sexual orientations, even though the government could not censor such speech outside the school environment.
The court then turned to Chase’s free exercise and establishment claims. It rejected his assertion that because the shirt’s message reflected his sincerely held religious belief, he was entitled under the Free Exercise Clause to wear the shirt at school without interference unless school officials could show they had a compelling government interest in restricting his speech and that their actions were narrowly tailored to achieve that interest. The Ninth Circuit concluded that school officials need only show a rational basis for their actions where the action taken is neutral in nature and of general applicability. The court declined to determine whether the free exercise claim was a "hybrid" claim, i.e., a free exercise claim raised in conjunction with another constitutional claim such as a free speech claim, subject to strict scrutiny, because it found the claim would fail under either the rational basis or strict scrutiny test. The Ninth Circuit concluded that the ban on the shirt did not substantially burden Chase’s religious practice or belief because it neither compelled him to affirm a repugnant belief nor punished him for his beliefs. Even when an individual believes he is required to proclaim his religious views at all times and in all places, the First Amendment does not prohibit the state from banning such conduct in certain circumstances, such as schools. School officials had a compelling interest in preventing psychological injury to gay and lesbian students, and they had narrowly tailored their actions to prevent such injury. As for the Establishment Clause claim, the court found this simply to be a restatement of the free exercise claim and rejected it on the same grounds. The court noted that the school officials’ actions satisfied the three-prong Establishment Clause test laid out in Lemon v. Kurtzman, 403 U.S. 602 (1971): (1) it had the secular purpose of promoting tolerance regarding sexual orientation; (2) the primary effect of the T-shirt ban neither advanced nor inhibited religion; and (3) there was no question of any excessive entanglement in religion.
The dissenting opinion attacked both the majority’s conclusions and reasoning. Regarding the free speech claim, it found that school officials had not presented sufficient facts to support banning the T-shirt on the basis of either substantial disruption or violation of the rights of others. While school officials might have been justified in prohibiting all discussion of homosexuality, to allow only one side to express its view on this controversial issue smacked of unconstitutional viewpoint discrimination. As for the infringing on "the rights of others," the dissent pointed out that the parties had neither briefed nor argued this issue and argued that the documentation relied on by the majority, such as law review articles, press releases from advocacy groups, and "pop psychology," was an inadequate substitute for an evidentiary record. The dissent also questioned the validity of the majority’s assertion that this new doctrine applies only to statements that demean students based on their "minority status such as race, religion, and sexual orientation." The dissent concluded: "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." Finally, the dissent took issue with the majority’s failure to address Chase’s claim that the school’s harassment policy was unconstitutionally overbroad.
Harper v. Poway Unified School District, No. 04-57037 (9th Circuit)
[Majority opinion]
[Dissenting opinion]
[Editor’s Note: Harper is the most recent case to enter the pantheon of T-shirt jurisprudence. The district court’s decision is summarized at the first link below. The Frederick decision is summarized at the second link.]
[NSBA School Law pages on Harper v. Poway Unified School District]
[NSBA School Law pages on Frederick v. Morse]