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Student speech case to Court

UPDATE: The case has been docketed as 06-595).

A conservative legal advocacy group, the Alliance Defense Fund, on Friday asked the Supreme Court to limit the authority of public school officials to censor student expression considered to be “negative.” A link to the petition in Harper v. Poway Unified School District (not yet assigned a docket number) can be found in the sixth paragraph of this news release on the Fund’s website. (A discussion of the case by First Amendment Center attorney David L. Hudson, Jr., can be found here.)

The petition argues that the Ninth Circuit Court ruling conflicts with decisions of three other Circuit Courts on the censorship issue. The appeal, however, suggests that the case may be moot, and if it is, the Ninth Circuit ruling should be vacated.

The case involves an incident in April 2004 when a sophomore at Poway High School in Poway, Calif., a community of about 50,000 located north of San Diego, was suspended for a day for wearing a T-shirt with an anti-homosexual message on it. The youth, Tyler Chase Harper, believes that homosexuality is contrary to the teachings of the Bible, his attorneys told the Court. His T-shirt, on the front, read: “I will not accept what God has condemned.” On the back, it said, “Homosexuality is shameful. Romans 1:27.”

His appeal contends that he was suspended after school officials told him that the message was inflammatory. His father was told later that only positive community messages from students were allowed under school policy. The youth has since graduated from high school, but his sister, Kelsie, is still a junior at the high school. Because of her brother’s graduation, the appeal suggested that the case may be moot. But, on Friday, attorneys for the sister asked the Court to allow her to intervene to keep the appeal alive. The attorneys said she desires to engage in the same kind of expression that led to her brother’s suspension..

The case reached the Supreme Court as an appeal from the Ninth Circuit’s refusal to issue a preliminary injunction against the school policy. An amended complaint, however, is still pending in U.S. District Court. The youth’s appeal to the Supreme Court contended that the Ninth Circuit ruling allows schools to censor one side of a political debate — the “negative” side that may be considered “demeaning” or “derogatory.” (Links to the Ninth Circuit’s opinions in the case can be found by entering the docket number of the case, 04-57037, on this web page.)

Here are the questions the petition presented:
“1. Did the Ninth Circuit err in holding, in conflict with opinions of the Third Circuit and this Court, that a high school student’s ‘negative’ speech may be censored because it allegedly ‘interferes with the rights of other students’ who perceive it as ‘demeaning’ or ‘derogatory?’
“2. Did the NInth Circuit err in holding, in conflict with the decisions of the Third, Second, and Sixth Circuits, and this Court, that high school officials are permitted to censor student viewpoints on one side of a debate?
“3. Should this Court vacate the decision below under United States v. Munsingwear, 340 U.S. 36, 39 (1950), where petitioner Tyler Chase Harper’s graduation has rendered moot his request for a preliminary injunction?”

(Thanks to Howard Bashman of How Appealing blog for the alert to the new appeal.)