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When Students Speak
Does the First Amendment protect public school students who want to bait gays?

Monday, August 7, 2006

LAST WEEK a sharply divided U.S. Court of Appeals for the 9th Circuit let stand an earlier decision holding that a public school may prevent a student from wearing an anti-gay T-shirt on campus. The case is hard -- pitting important First Amendment values against the ability of a public school system to create an environment in which all students feel welcome and comfortable. In our view, the court's answer presents serious problems. Identifying a better solution, however, is tricky -- and may be a task for the Supreme Court.

Back in 2004, Poway High School in Southern California allowed a lesbian and gay student group to hold a "Day of Silence" to protest intolerance toward gays. In response, a student named Tyler Chase Harper wore a T-shirt to school on which he had written on the front: "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED." The back read: "HOMOSEXUALITY IS SHAMEFUL 'Romans 1:27.' " The shirt did not prompt disciplinary problems among the students, but school administrators asked Mr. Harper to remove it, claiming it was inflammatory and fearing altercations over it. The youth refused and was kept in the school office for the day, though not punished. He sued.

Students have free-speech rights, but they are more constrained than those of adults. School districts can limit them in the interests of maintaining a disciplined educational environment. And schools can regulate speech that, as the Supreme Court put it, "intrudes upon . . . the rights of other students."

The 9th Circuit majority regarded Mr. Harper's shirt as doing just that. "Advising a young high school or grade school student while he is in class that he and other gays and lesbians are shameful, and that God disapproves of him," wrote Judge Stephen Reinhardt, "strikes at the very core of the young student's dignity and self-worth." Indeed, however heartfelt, this type of speech is poisonous stuff. And we agree that school administrators must have some latitude to prevent in-school speech intended to vilify minority individuals and groups.

The trouble here is that the school encouraged speech on the other side of a politically charged issue. And as the dissenters point out, it's a dicey business for schools to be favoring one side of a matter of great and ongoing religious and political controversy. Public schools should not be at once assisting an advocacy group in drawing attention to the plight of gay and lesbian students and forbidding those with deep religious objections from wearing a shirt expressing their feelings.

Part of the problem is that the Supreme Court's case law on this area is terribly vague. This case presents an excellent vehicle for clarifying matters. In part because the school seems to have acted in good faith, it presents the question pointedly and with the costs of a ruling on either side well-defined. The justices ought to take a look.

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