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U.S. APPEALS COURT
Public schools can ban anti-minority messages

Public schools can prohibit students from displaying messages that attack gays or other persecuted minorities, a divided federal appeals court ruled Thursday in the case of a Southern California youth whose T-shirt proclaimed that "homosexuality is shameful.''

In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco said a high school sophomore in San Diego County was unlikely to be able to show at trial that his rights were violated when school officials ordered him to remove the shirt in April 2004, the day after an event at the school promoting gay-straight tolerance.

"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,'' Judge Stephen Reinhardt wrote in the majority opinion.

Reinhardt said students' constitutional right of free speech does not prohibit school officials from restricting "student speech that intrudes upon the rights of other students.''

Judge Alex Kozinski dissented, saying the majority was relying on pop psychology to create a new right for certain groups of students to be protected from offensive speech.

"I have considerable difficult with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school environment because the opposing point of view is too extreme or demeaning,'' Kozinski said.

The Alliance Defense Fund, a conservative organization that represented the student in the case, said it would ask the full appeals court to order a new hearing by a 15-judge panel.

"Students do not give up their First Amendment rights at the schoolhouse door,'' said attorney Kevin Theriot. "This panel has upheld school censorship of student expression if it is the Christian view of homosexual behavior.''

He contrasted the ruling with a 2001 decision by another federal appeals court, written by then-Judge Samuel Alito -- now a Supreme Court justice -- overturning on free-speech grounds a school district's harassment policy that included bans on anti-gay slurs.

The San Diego student, Chase Harper, wore his shirt at Poway High School in protest of the annual "day of silence'' sponsored by the school's Gay-Straight Alliance. The same event a year earlier had been the occasion of confrontations between students, some of them wearing T-shirts with derogatory comments about homosexuals, the court said.

The back of Harper's shirt read, "Homosexuality is shameful,'' with a biblical citation; the front read, "Be ashamed, our school embraced what God has condemned."

Kozinski, in dissent, said Harper did not intend to demean other students but to dispute the viewpoint expressed in the "day of silence." Silencing Harper's message amounts to unconstitutional "viewpoint discrimination," Kozinski said.

A teacher sent Harper to the principal's office, where Principal Scott Fisher told him the shirt was inflammatory and asked him to remove it. The student asked to be suspended instead, but the principal kept him in the office for the rest of the day without disciplining him.

Harper's suit, filed in June 2004, claimed violations of freedom of speech and religion. Thursday's ruling upheld a federal judge's denial of an injunction that would prohibit the school from enforcing its policy.

Reinhardt, joined by Judge Sidney Thomas in the majority opinion, said the Supreme Court's landmark 1969 ruling on free speech in public school -- allowing a student to wear a black armband in class to protest the Vietnam War -- left room for school officials to limit expression that disrupts education or violates other students' rights.

Those rights, he said, include the right of a historically persecuted minority group to be free from "psychological attacks that cause young people to question their self-worth and their rightful place in society.'' He also said requiring Harper to remove his T-shirt did not interfere with his religious beliefs or practices.