Harper is claiming a first amendment right to try to shame his fellow students.
A majority of judges said, however, that Tyler Chase Harper was unlikely to prevail on claims that the Poway Unified School District violated his First Amendment rights to freedom of speech and religion for keeping him out of class when he wore a shirt with the message “homosexuality is shameful.”
The lawsuit results from Harper’s response to the 2004 Day of Silence. Harper refused to change his shirt and so was held out of class for a day and allowed to do homework in a conference room.
On Thursday, the three-judge appeals court panel said “the school is permitted to prohibit Harper’s conduct…if it can demonstrate that the restriction was necessary to prevent either the violation of the rights of other students or substantial disruption of school activities.”
The opinion, written by Judge Stephen Reinhardt and joined by Judge Sydney Thomas for a 2-1 ruling, didn’t decide the merits of the student’s lawsuit, which will be heard in federal court in San Diego.
The dissenting judge seemed unable to distinguish between the tactics employed by the Day of Silence and those employed by Harper:
“Harper’s T-shirt was not an out-of-the-blue affront to fellow students who were minding their own business,” Kozinski wrote. “Rather, Harper wore his T-shirt in response to the Day of Silence, a political activity that was sponsored or at the very least tolerated by school authorities.”
Kozinski did not differentiate between an event that was focused on inclusion and tolerance of others and a T-shirt message that sought to diminish and show distain for others. Kozinski validated Harper’s belief, a common one among the politically religious, that stating any beliefs which they do not endorse is an attack on them and their right to harm gay people.
Fortunately, for the moment, the politics of exclusion and shaming have been put on hold.
UPDATE: The Los Angeles Times has a more substantive article