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March 1, 2007
Vol. 64
No. 6

“Tinkering” Close to the Edge

A recent court decision raises the question: When students' ideologies clash, whose rights are protected?

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Anyone strolling down the halls of a contemporary public school will encounter a wide variety of fashion statements. While some such statements merely offend the eye, the U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction over the westernmost states (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington), has ruled that some statements may also impinge on students' rights. That court recently ruled that public high school administrators could keep a student from wearing to school a T-shirt bearing a Bible reference and a statement that homosexual behavior is immoral.
In making its decision, the court did not invoke the usual rationale for prohibiting student speech—that the speech was likely to disrupt school activities. Instead, the court relied on the notion that a public school can prohibit student speech that intrudes upon other students' rights. This represents a new and potentially significant direction for the regulation of speech in public schools.

Background on Student Speech

The leading U.S. Supreme Court decision on student speech in the public schools is Tinker v. Des Moines Independent Community School District(1969). TheTinker case involved three public high school students who wore black armbands to school to protest American involvement in the Vietnam War. The school district suspended them, and the students challenged the suspensions in court. The Supreme Court ruled for the students but recognized that the need to regulate speech might be somewhat greater in public schools than in the broader public arena. The Court held that a public school may regulate student speech that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” (Tinker v. Des Moines, 1969, at 506; quoting Burnside v. Byars, 1966). To justify restricting student speech, school authorities would have to show that they “had reason to anticipate” that the speech “would substantially interfere with the work of the school or impinge upon the rights of other students” (at 509).
Since Tinker was decided in 1969, federal and state courts have cited it thousands of times, and the focus has generally been on the potential for student speech to disrupt the work of the school, rather than on whether it would impinge on other students' rights. But now, in a case called Harper v. Poway Unified School District, the Ninth Circuit has given this language from Tinkernew life.

The Facts: Harper v. Poway Unified School District

Poway High School enrolls more than 3,000 students in the suburbs north of San Diego, California. In 2003, the school permitted a student group called the Gay-Straight Alliance to hold a Day of Silence, part of a national event held in U.S. schools every spring to encourage tolerance for students of all sexual orientations.
Poway's inaugural Day of Silence was not a complete success. According to the Ninth Circuit, some students made antihomosexual remarks, which led to altercations. A week or so later, a group of heterosexual students organized something they called “Straight-Pride Day” and wore T-shirts bearing “derogatory remarks about homosexuals” (Harper v. Poway, April 2006, at 1171). An assistant principal told these students to remove their T-shirts. Some complied; others did not and were suspended.
A second Day of Silence was scheduled for April 21, 2004. On that day, student Tyler Chase Harper wore a T-shirt with the words “I will not accept what God has condemned” on the front and “Homosexuality is shameful. Romans 1:27” on the back. Harper's shirt apparently escaped any teacher's notice that day. The next day, Harper wore a T-shirt with a new message on the front: “Be ashamed, our school embraced what God has condemned”; the words on the back remained the same. One of Harper's teachers asked him to remove the shirt and explained that it was “‘inflammatory’ . . . violated the School's dress code, and . . . ‘created a negative and hostile working environment for others”’ (Harper v. Poway, April 2006, at 1171–1172). When Harper refused, the teacher sent him to the office.
Two assistant principals, the principal, and a visiting deputy sheriff could not persuade Harper to remove the shirt. Harper twice asked the principal to suspend him, but the principal refused and instead required Harper to remain in the front office until the end of the school day. Harper received credit for having attended school that day, and no disciplinary record was placed in his file.
On June 2, 2004, Harper filed a lawsuit against the Poway Unified School District, the school board members, the district superintendent, the principal, two assistant principals, and a teacher. He alleged, among other things, that the defendants had violated his First Amendment right to free speech and asked the district court to award damages and enter a preliminary injunction to keep the school from continuing to violate his constitutional rights.
The district court dismissed Harper's damages claims and several of his constitutional and statutory claims. The court declined to dismiss his First Amendment freedom-of-speech claim but concluded that he was not likely to prevail on that claim at trial and therefore refused to enter a preliminary injunction. (To justify an injunction beforetrial, defendants generally must show that they face the risk of irreparable harm if the injunction is not granted and that they will likely succeed on the merits of their complaint at trial.) The district court concluded that Harper was unlikely to succeed at trial because his conduct threatened to disrupt school activities—the traditional justification for limiting student speech underTinker.

The Ninth Circuit's Decision

Two of the three judges on the Ninth Circuit panel voted to affirm the district court's decision denying the preliminary injunction, but not for the reasons that the district court gave. Instead of finding that Harper's T-shirt would substantially disrupt school activities, the Ninth Circuit majority focused on the statement in Tinker that school authorities may prohibit student speech that they believed would impinge upon other students' rights.
As Judge Samuel Alito pointed out in the 2001 Third Circuit Court case Saxe v. State College Area School District, one view of Tinker's reference to speech that impinges upon other students' rights is that “it covers only independently tortious speech like libel, slander, or intentional infliction of emotional distress” (at 217). On this understanding, public school administrators may restrict speech that would provide a basis for a tort lawsuit against a student—for example, libelous speech in a student newspaper.
The Ninth Circuit majority rejected this reading of Tinker. Instead, the court interpreted Tinker as holding 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.” In the court's view, such speech would “cause young people to question their self-worth and their rightful place in society,” “injure and intimidate them,” “damage their sense of security, . . . interfere with their opportunity to learn,” and may “destroy their self-esteem” (Harper v. Poway, April 2006, at 1178–1179). The court concluded that Harper's T-shirt fell into this category of injurious speech.
At the same time, the Ninth Circuit rejected the Poway principal's view that he could ban “any shirt which is worn on campus which speaks in a derogatory manner towards an individual or group of individuals” (at 1182). The court noted that the ruling only prohibited speech “that strikes at a core identifying characteristic of students on the basis of their membership in a minority group” (at 1182, note 27). For example, the principal could not invoke the rights-of-others language to ban T-shirts with political messages such as “Young Republicans Suck” or “Young Democrats Suck.” The court asserted that these slogans “would certainly not be sufficiently damaging to the individual or the educational process to warrant a limitation on the wearer's First Amendment rights” (at 1182).
In short, the court ruled that public school administrators can ban speech that (1) is directed at “students who are members of minority groups that have historically been oppressed” (at 1178) and (2) causes those minority students “to question their self-worth and their rightful place in society” (at 1178).

A Dissenting Opinion

The Ninth Circuit panel's third member, Judge Alex Kozinski, wrote a strong dissent. He expressed discomfort “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” (Harper v. Poway, April 2006, at 1201). In effect, he concluded, the school ordained a day for confronting issues associated with sexual orientation and then muzzled students on one side of the ideological divide.
Judge Kozinski also had problems with the majority's decision to limit its doctrine to members of “historically oppressed” minorities. He submitted that 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” (at 1201). And he noted the difficulty of defining a minority. He wondered whether Catholics are “part of a monolithic Christian majority, or a minority sect that has endured centuries of discrimination in America” (at 1201), and whether white students are a minority in a school where black students constitute the majority.

The Implications for Public Schools

The Poway case could change the way public school administrators deal with student speech. For the first time, school officials in the western states have the authority to prohibit students from making statements that “strike at a core identifying characteristic of students on the basis of their membership in a minority group” (Harper v. Poway, April 2006, at 1181). This apparently means that principals can prohibit students from saying anything at school that demeans gay students because they are gay, black students because they are black, or Jewish students because they are Jewish—all examples that appear in the Ninth Circuit's opinion. This holding raises several difficulties for public school administrators.

Defining Minorities

As Judge Kozinski points out, the holding's scope is not clear. Judge Kozinksi's question about Catholic students is an especially good one. Roman Catholics constitute about one quarter of the U.S. population and so qualify as a minority in the strict numerical sense. And Catholics faced discrimination for much of U.S. history. But Catholics are also part of a Christian majority and have achieved many successes in the contemporary United States. For example, with the confirmation of Justice Samuel Alito in 2006, Roman Catholics now occupy a majority of the seats on the Supreme Court. Given these facts, it's understandable that a school administrator might not know what to do when faced with anti-Catholic speech on campus.
The Ninth Circuit's opinion also depends on the assumption that gay students, as part of a historically repressed minority, are more susceptible to psychological injury when someone questions the morality of their sexual orientation than obese students are when someone calls them “fat” or students in the bottom third of the class are when someone calls them “stupid.” Judge Kozinski is surely right that the injury to a student's self-esteem could be as great in the latter cases as in the former, but those students are not given minority status and are therefore not legally protected from demeaning speech.

Silencing Controversy

The Ninth Circuit's holding invites substantial censoring of speech based on the speaker's viewpoint. This decision could largely chill the discussion of controversial topics in public schools because teachers and administrators would worry that students might cross the line and offend one another in ways damaging to their self-esteem.
It is not hard to imagine a situation in which students on both sides of the divide would have to be muzzled. An oncampus discussion of sexual orientation might involve a Muslim student calling a gay student's sexual practices sinful and that gay student calling the Muslim student's religious beliefs small-minded or shameful. Both students are members of minorities, but their views might be offensive to each other. If that were to happen, public school administrators, mindful of the Ninth Circuit's doctrine, might feel obliged to forbid the students from continuing their discussion.

Making Theological Judgments

Judge Ronald Gould, in a July 2006 opinion concurring with the Ninth Circuit's decision not to reconsider theHarper decision, wrote that “a tee shirt misusing biblical text to hold gay students to scorn” was a form of “hate speech” not entitled to First Amendment protection (Harper v. Poway, July 2006, at 1052). It would be a remarkable thing if, in order to apply the Ninth Circuit's doctrine, public school administrators had to determine what constitutes a misuse of the Bible or any other religious text. The Ninth Circuit's approach could require public school administrators to make theological judgments—a task for which most administrators would probably consider themselves quite unsuited.

Avoiding Lawsuits

Perhaps most troubling for school administrators, the Ninth Circuit's opinion arguably creates not just the authority to limit “injurious” student speech but theobligation to do so. By relying on Tinker's reference to other students' rights and dwelling on the psychological harm done to minority students, the Ninth Circuit is saying, in effect, that such students have a legal right not to hear or see any message that might harm their self-esteem. And where there is a legally recognized right, lawsuits are sure to follow.
If the Ninth Circuit's decision were to stand, it would be surprising if minority students and their parents did not cite it prominently in lawsuits alleging negligence on the part of school administrators for failing to keep minority students from hearing any fellow students' offensive comments.

The Future of Harper v. Poway

On October 26, 2006, Harper's lawyers filed a petition requesting that the U.S. Supreme Court review the case. The Supreme Court will decide whether to take the case or study the issue further on February 16, 2007, as this issue ofEducational Leadership goes to press.
We believe the case is a good candidate for Supreme Court review because it is in tension with the law in other federal circuits and is arguably contrary to long-standing Supreme Court precedent. We suspect that the Harper v. Poway decision is not long for this world. However, until the U.S. Supreme Court makes a ruling, Harper is the law in much of the western United States.
The next nationwide Day of Silence is scheduled for April 18, 2007, and school administrators may face the same difficulties the officials at Poway encountered. Administrators throughout the country, particularly those in the Ninth Circuit, would do well to read the decision and think about how it might affect their own school policies regarding offensive speech.

Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. April 2006).

Harper v. Poway Unified School District, 455 F.3d 1052 (9th Cir. July 2006).

Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001).

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

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