ACLU Defends Controversial Speech in Public School

In a significant free speech case that has sparked national attention, the American Civil Liberties Union of San Diego & Imperial Counties filed an amicus brief today in U.S. District Court in Harper v. Poway Unified School District. Our brief argues that the anti-gay t-shirt worn by Tyler Chase Harper did not amount to harassment that the school was permitted to punish.

In 2004, students at Poway High School organized a “Day of Silence,” a national youth-run effort using silence to protest the actual silencing of lesbian, gay, bisexual and transgender (LGBT) people due to harassment, bias, and abuse in schools. On the Day of Silence and the following day, Harper wore a t-shirt that said, “Be Ashamed, Our School Embraced What God Has Condemned” on the front and “Homosexuality Is Shameful ‘Romans 1:27’ ” on the back.

There was no evidence of any disturbance on the first day, and on the second day, a teacher observed “several students off-task talking about the shirt.” It was also alleged that there may have been a “tense verbal conversation” about it, but Harper characterized it and other conversations as “peaceful discussions wherein differing viewpoints were communicated.”

In a decision since vacated by the Supreme Court, the Ninth Circuit Court of Appeals held that Harper’s shirt, by itself, “invaded the rights of other students.” The case has been remanded to the district court to consider that issue. Though vacated, the Ninth Circuit’s opinion could still be considered persuasive. The ACLU’s amicus brief explains that while the vacated opinion was correct in its concern for LGBT students, it was incorrect by claiming that the expression of an idea, by itself, invades the rights of other students.

Schools have the right and indeed the duty to protect students from unlawful harassment. The ACLU recognizes the unconscionable harassment suffered by many LGBT students and fights for their right to equal educational opportunity free from harassment. Indeed, we have filed an amicus brief in a case in which two high school students endured prolonged harassment and abuse and the authorities did nothing to stop it.

But the schools may not prohibit the expression of an idea merely because it is offensive or repugnant to some or even many. An idea, by itself, is not harassment. Though a school may advocate its own position, it may not ban student speech merely because it disapproves of the student’s viewpoint. To ban ideas from public schools simply because they are controversial strikes at the heart of the First Amendment and the spirit of open debate that a healthy democracy and public education require.

If the reasoning of the vacated decision is fully adopted, the First Amendment would effectively cease to exist in public schools. A rule that allows school officials to ban any idea that they or others find offensive or repugnant would grant them unlimited license to ban almost any student speech on any topic of significance.

As a practical matter, schools can do a better job of preventing harassment by engaging in active education to promote respect for everyone, rather than resorting to the blunt instrument of censorship, which often has the unintended consequence of promoting the censored message. Indeed, the publicity surrounding this case has resulted in far more dissemination of Harper’s message than if the school had simply allowed him to wear his shirt.

As in many other ACLU cases, there are conflicts between civil liberties interests, and competing rights must be reconciled.

The ACLU remains committed to defending all civil liberties, including freedom of speech and equal educational opportunity for all students.