Tinkering with Tinker standards?

Can a public school prevent a student from wearing T-shirts with anti-gay messages?

Does a public school engage in impermissible viewpoint discrimination by promoting a day of tolerance for gay and lesbian students while silencing a student with different political and religious views on the subject?

Did a panel of the 9th U.S. Circuit Court of Appeals tinker with the application of the leading Supreme Court student-speech case, Tinker v. Des Moines Independent Community School District (1969)?

The simple answer is that we don’t know because recently the full 9th Circuit declined to review the three-judge panel’s April decision that a California student’s anti-gay T-shirts invaded the rights of other students and so could be prohibited in school.

The panel ruled 2-1 in Harper v. Poway Unified School District that school officials could prohibit student Tyler Chase Harper from wearing shirts bearing messages such as “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” and “HOMOSEXUALITY IS SHAMEFUL.” Harper wore the shirts to protest his school’s support of a National Day of Silence, which promotes tolerance of sexual orientation.

Harper sued, claiming that the school’s silencing of his expression amounted to viewpoint discrimination because the school allowed expression of what Harper considered the pro-gay viewpoints associated with the Day of Silence. A federal district court denied his preliminary injunction and the divided panel agreed.

Judge Stephen Reinhardt contended that Harper’s speech could be prohibited because it “collides with the rights of other students” within the meaning ofTinker v. Des Moines. In Tinker, the Supreme Court ruled that school officials can prohibit student speech when they can reasonably forecast that the expression will create a substantial disruption or invade the rights of others. Reinhardt relied on the “invades the rights of others” part of Tinker to rule against Harper.

In a spirited dissent, Judge Alex Kozinski wrote: “I have considerable difficulty 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 and his lawyers with the Alliance Defense Fund sought en banc, or full panel, review. The majority of the 9th Circuit voted on July 31 not to rehear the case, over the dissent of several judges.

In his concurrence to the denial of en banc review, Reinhardt wrote that “the dissenters still don’t get the message — or Tinker!” He wrote: “Whatever the reason for the dissenters’ blindness, it is surely not beyond the authority of local school boards to attempt to protect young minority students against verbal persecution, and the exercise of that authority by school boards is surely consistent with Tinker’s protection of the right of individual students ‘to be secure and to be let alone.’”

Several judges voted to rehear the case, including Judge Diarmuid O’Scannlain, who wrote that “the panel majority’s decision amounts to approval of blatant viewpoint discrimination.” He reasoned that “under the panel majority’s decision, school administrators are now free to give one side of debatable public questions a free pass while muzzling voices raised in opposition.”

The case may be appealed to the U.S. Supreme Court. Kevin Thierot, senior counsel for the Alliance Defense Fund and Harper’s attorney, said he was disappointed with the court’s denial of en banc review. He said he and Harper were considering whether to seek certiorari with the high court or wait for a ruling on pending summary-judgment motions in the case. “We will make that decision next week,” he said.

“There is no doubt that some people were offended by young Mr. Harper’s speech, but that is precisely the kind of speech that the First Amendment was designed to protect,” Thierot said. “The panel opinion carved out a new interpretation of Tinker that is very dangerous for the First Amendment.”

If a cert petition is filed, it may make for an attractive case for Supreme Court review for several reasons.

First, the decision arises from a divided panel opinion and a divided denial of en banc review. Second, it involves an unusual application of the Tinker standards. The vast majority of cases applying Tinker have focused on the “substantial disruption” standard, whereas the Harper v. Poway panel opinion seized on the oft-ignored Tinker language of “invasion of the rights of others.” Lower courts need guidance on the application of this part of Tinker.

The case also involves the important First Amendment concept of viewpoint discrimination, a concept that the Supreme Court has spoken of eloquently in various cases through the years. Finally, the matter involves an important and pressing public issue — the treatment of gay and lesbian students.

In an Aug. 7 editorial, “When Students Speak,” The Washington Post expressed concern that the school engaged in viewpoint discrimination by “favoring one side of a matter of great and ongoing religious and political controversy.” The Post concluded that “the justices ought to take a look.”

It will probably take Supreme Court review to settle the legal issue of the “invades the rights of others” standard in Tinker. And on Oct. 28, lawyers for the former Poway High School student asked the high court to review the case.

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