But Would Jesus Wear the T-Shirt?

A high school can ban a t-shirt that displays a purportedly religious message against homosexuality in response to a day intended to “teach tolerance of others, particularly those of a different sexual orientation.”

The t-shirt read “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” on the front and “HOMOSEXUALITY IS SHAMEFUL” on the back. The high school student refused to take off the shirt and spent the day in an administrative office but was not suspended or otherwise punished.

He subsequently filed for a preliminary injunction to prohibit the school from banning the t-shirt, arguing violations of his right to free speech, his right to free exercise of religion, the Establishment Clause, the Equal Protection clause and the Due Process Clause.

The Ninth Circuit Court of Appeals affirmed the district court’s decision that the t-shirt ban was proper. The court agreed that the shirt “embodies the very sort of political speech that would be afforded First Amendment protection outside of the public school setting,” but the student’s rights must be determined in light of the school’s “need to maintain a safe, secure and effective learning environment.” Under that rule, the court said a school may regulate student speech that would impinge upon the rights of other students.

The court found that in a prior year there had been altercations between students during the “Day of Silence” as a result of anti-homosexual comments made by students. There were no incidents in 2004 when the plaintiff wore his t-shirt. Nonetheless, the court concluded that the wearing of the t-shirt collides with the rights of other students in a fundamental way.

“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,” the court wrote. “Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society.”

The court found that political speech would be permitted and that it was limiting “our holding to instances of derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.”

In a dissenting opinion, the judge found that the student did not thrust his view of homosexuality into the school environment as part of a campaign to demean or embarrass other students. “Rather, he was responding to public statements made by others with whom he disagreed. Whatever one might think are the psychological effects of unprovoked demeaning statements by one student against another, the effects may be quite different when they are part of a political give-and-take. By participating in the Day of Silence activities, homosexual students perforce acknowledge that their status is not universally admired or accepted; the whole point of the Day of Silence, as I understand it, is to dispute views like those characterized by Harper’s t-shirt.”

Harper v. Poway Unified School District, Ninth Cir. No. 04-57037, April 20, 2006.