Schools in the Western United States can forbid a high school student to wear a T-shirt with a slogan that denigrates gay and lesbian students, a sharply divided federal appeals court in San Francisco ruled Thursday.
In a 2-1 decision, the U.S. 9th Circuit Court of Appeals said that a T-shirt that proclaimed "Be ashamed, our school embraced what God has condemned" on the front and "Homosexuality is shameful" on the back was "injurious to gay and lesbian students and interfered with their right to learn." Wearing such a T-shirt can be barred on a public high school campus without violating the 1st Amendment, the court said.
In numerous instances, the U.S. Supreme Court has held that Americans must tolerate offensive speech, including permitting marches by Nazis through a community with a substantial Jewish population. However, the majority ruled in this instance that some limitations were permissible in a public secondary school setting.
The court concluded that San Diego-area high school student Tyler Harper's donning of the T-shirt "collides with the rights of other students in the most fundamental way," wrote 9th Circuit Judge Stephen Reinhardt.
"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," Reinhardt said. "Being secure involves not only the freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society."
Judge Alex Kozinski issued a strong dissent. "While I find this a difficult and troubling case," the Poway Unified School District has "offered no lawful justification for banning Harper's T-shirt."
There was no evidence that gay students were harmed by derogatory messages of the type conveyed on Harper's T-shirt, Kozinski said.
Moreover, Kozinski, an appointee of former President Reagan, said there was no indication that a discussion that Harper had with other students about the T-shirt "turned violent or disrupted school activities."
In fact, Kozinski said, "while words were exchanged, the students managed the situation well and without intervention from the school authorities. No doubt, everyone learned an important civics lesson about dealing with others who hold sharply divergent views."
