U.S. Supreme Court vacates 9th Circuit ruling limiting student free speech

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POWAY, Calif. — The U.S. Supreme Court has vacated last year's 9th U.S. Circuit Court of Appeals decision which essentially paved the way for school districts to restrict student dress, even if it inhibits their religious and free speech rights.

Tim Chandler, legal counsel for the Alliance Defense Fund and who represents former Poway High School student Chase Harper, said the 9th Circuit Court established precedent-limiting free speech across a wide swath of the western United States.

"It was the law for every school in nine states," he said. "That's no longer law. The big picture is that students in the 9th Circuit have much more free speech rights than they had before."

Harper, who was suspended in 2004 for wearing a T-shirt expressing his religious views against homosexuality, sued the district for its actions. Harper has since graduated, but his younger sister, Kelsie, a junior at the school, has been added to the case.

At the same time, the high court, in its 8-1 vote, rejected Harper's request for a preliminary injunction, which would have forced the school to suspend its policy while the case worked its way through the legal system.

The March 5 high court decision covered just the injunction, the first of two legal prongs being pursued in the First Amendment case. In reviewing Harper's first-phase appeal, the Supreme Court justices said that a subsequent district court trial decision on the merits of the case, issued in January, have rendered the 9th Circuit's preliminary injunction ruling moot, Chandler said.

When the appeals court issued its preliminary injunction ruling last spring it did not rule on the actual merits of the case, but clearly signaled to Harper that he would not prevail against the Poway school district. In its majority opinion, the two judges suggested that motion pictures such as "Brokeback Mountain" or "The Matthew Shepard Story" were enough to suggest "evidence of the harmful effects of anti-gay harassment...."

In addition to being ecstatic that the high court set aside the 9th Circuit law limiting student rights, Chandler said the ruling could have a significant impact on the second phase of his client's case, even though the district judge ruled against Harper in January.

"The basis for that was the 9th Circuit decision," Chandler, the Sacramento-based attorney, said. "The judge was saying 'that (appeals court) decision was binding on me. I have no choice. My hands are tied.'"


Back to district court
Chandler said his client will likely return to district court and ask the judge to reconsider his January ruling since the Supreme Court has vacated the appeals court opinion, which the district court considered in rendering its decision.

"It was not based on good law," the plaintiff's attorney said.

If unsuccessful at the district level, he plans to appeal the January ruling to the 9th Circuit.

"The case will go forward on the merits," Chandler said. "Because that (preliminary injunction) decision was vacated they get to do it with a clean slate."

The entire case could ultimately end up before the Supreme Court again.

Chandler said they were grateful the Supreme Court agreed to review the first-phase appeal. Less than 1 percent of cases actually appealed to the high court are ever reviewed.

Even so, the religious rights attorney was reluctant to say the case has found favor with the Supreme Court justices.

"It's hard to speculate based on what they did and if that's how they view the merits of the case," he said. "It's certainly possible the Supreme Court could take this case later on if we get an unfavorable ruling.


Responding to others
Harper gained national headlines three years ago when he created his own T-shirt to counter a pro-gay Day of Silence campaign on his campus. Launched by gay and lesbian advocates, Day of Silence participants refuse to speak throughout the entire school day as a symbolic gesture against discrimination of homosexual students. In recent years, ADF has established the Day of Truth to counter the pro-homosexual campaign. This year's Day of Truth, in which students wear T-shirts and hand out cards during class breaks, is planned for April 19, a day after the Day of Silence.

ADF, with its affiliate attorney nationwide, has vowed to represent any student who is prohibited from participating in the Day of Truth.

"If an administrator looked at the Day of Truth and decided that students were not constitutionally protected, that would be a big misunderstanding of the law," Chandler said.

For more information about Day of Truth or to get some resources on the project, visit dayoftruth.org.

Published, April 2007