## Facts

- Poway High School had prior conflicts among students concerning sexual orientation, including incidents and suspensions following anti-gay remarks and derogatory T-shirts.
- The school permitted a student group to sponsor a “Day of Silence” to encourage tolerance regarding sexual orientation and sought to reduce tensions for the 2004 event.
- On April 21, 2004, during the Day of Silence, Tyler Harper wore a T-shirt stating “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED” and “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27’.”
- School staff determined the shirt violated the dress code and anti-harassment policies and required Harper to remove/cover it or spend the day in a separate room.
- Harper refused to remove or cover the shirt and spent the remainder of the school day outside regular classes.
- Harper sued under 42 U.S.C. § 1983 and sought a preliminary injunction to prevent enforcement of the policy against his shirt; the district court denied relief.

## Issues

1. Whether a public high school violates the First Amendment by requiring a student to remove or cover a T-shirt condemning homosexuality, or be separated from the general student population, during the school day.
2. Whether, under *Tinker*, school officials may restrict student speech that denigrates students based on sexual orientation as an invasion of other students’ rights, even without a showing of likely substantial disruption.
3. Whether the restriction likely violated Harper’s free exercise or establishment clause rights when the message was religiously framed.

## Decision

- The Ninth Circuit affirmed the denial of the preliminary injunction.
- The court held Harper failed to show a likelihood of success on the merits of his First Amendment claims.
- The court concluded the school could restrict the shirt under *Tinker* because the message intruded on the rights of gay and lesbian students to be secure and “let alone,” given the school setting and prior related conflicts.
- The court rejected, at the preliminary-injunction stage, Harper’s free exercise and establishment clause claims, viewing the restriction as justified by anti-harassment and student-safety concerns rather than hostility to religion.

## Legal Principles

- Under *Tinker v. Des Moines*, schools may regulate student speech that materially disrupts school operations or collides with the rights of other students to be secure and let alone.
- School officials may restrict student expression that directly denigrates or targets other students based on sexual orientation when the message functions as verbal harassment that can impair students’ sense of safety and access to education.
- Restricting the manner of expression may be permissible where the school allows discussion of the underlying religious or political viewpoint but bars speech deemed demeaning toward a vulnerable student group.
- A restriction is less likely to violate the Free Exercise or Establishment Clauses when it is justified by generally applicable anti-harassment policies and is not aimed at religious practice as such.

## Conclusion

The Ninth Circuit upheld the school’s refusal to allow Harper to wear his anti-gay T-shirt at school, concluding that, in context, the shirt could be treated as harassing speech that infringed other students’ rights under *Tinker*, making preliminary injunctive relief unwarranted.


Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006)