Federal judge backs school’s ban of anti-gay T-shirt

Thursday, February 14, 2008

SAN DIEGO — A federal judge has rejected a claim that the Poway Unified School District violated a teenager's First Amendment rights by pulling him out of class for wearing a T-shirt with an anti-gay slogan.

Tyler Harper sued the school in 2004 after the district said he could not wear a shirt printed with a Bible verse condemning homosexuality. His younger sister, Kelsie, was named as a plaintiff after he graduated.

The Feb. 12 ruling by U.S. District Judge John Houston reaffirmed an earlier decision in which he upheld the school district's policy on hate speech.

Houston based his ruling on a 2006 9th U.S. Circuit Court of Appeals decision that found the T-shirt infringed upon the rights of other students “in the most fundamental way.”

On April 21, 2004, students at Poway High School observed a “Day of Silence” to raise awareness of prejudice against homosexual students. That day, Harper wore a T-shirt to school that read, “I Will Not Accept What God Has Condemned” on the front and “Homosexuality is Shameful, Romans 1:27” on the back. He refused to take the shirt off when asked by a teacher and was subsequently sent to the principal’s office for the rest of the day.

The 2006 9th Circuit ruling said the T-shirt infringed upon other students’ rights more than asking Harper to remove it infringed upon his rights. Houston based this week’s ruling primarily on that decision.

As quoted in the San Diego Union-Tribune, Houston wrote in his opinion, “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.”

“It appears to be a double standard,” Robert Tyler, one of Harper’s lawyers, told the Union-Tribune for a Feb. 12 story. “Why is it acceptable to tell [students] of faith their views are not as valuable as the view of any person opposing them?”

Tyler and Kelsie Harper, represented by the Alliance Defense Fund, appealed the 9th Circuit’s decision to the Supreme Court, which refused to hear the case on procedural grounds in 2007. Tyler Harper had already graduated from high school at that point.

First Amendment Center Online intern Melanie Bengtson contributed to this report.

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