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