From the Los Angeles Times:
Schools in the western United States can forbid a high school student from wearing a T-shirt that denigrates gay and lesbian students, a sharply divided federals appeals court in San Francisco ruled today.
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.” The court said that the shirt can be barred on a public high school campus without violating the 1st Amendment.
“We conclude that” Poway High School student Tyler Harper’s wearing of his T-shirt ” ‘collides with the rights of other students’ in the most fundamental way,” wrote 9th Circuit Judge Stephen Reinhardt, quoting a passage from Tinker vs. Des Moines Independent Community School District, a seminal U.S. Supreme Court decision on the free speech rights of students.
“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. As Tinker clearly states, students have the right to ‘be secure and to be let alone,'” 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. The ‘right to be let alone’ has been recognized by the Supreme Court … as the most comprehensive of rights and the right most valued by civilized men,” Reinhardt said.
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 said there was no indication that a discussion Harper had with other students about the T-shirt “turned violent or disrupted school activities.”
I think the matter should have been determined on the simple basis that the t-shirt violated the school’s dress code — which the courts have given broad leeway to interpretation — and left out the psychological considerations. The court did not rule that Harper couldn’t wear the shirt at all; just not at school where he is under the jurisdiction of the school district.
Let’s put this in perspective. If Tyler Harper had worn a shirt that said “Be Ashamed. Our School Has Embraced Desegregation,” and on the back said “White Power,” or “Death to Israel,” would there be any doubt that he would be in violation of the dress code, and inflammatory to boot? I doubt it. So why is one group of people not entitled to the same protection from discrimination as the others? It’s simple: to many people when it comes to equal rights and protections, gays don’t matter.