445 F.3d 1166 | 9th Cir. | 2006
Lead Opinion
May a public high school prohibit students from wearing T-shirts with messages that condemn and denigrate other students on the basis of their sexual orientation? Appellant in this action is a sophomore at Poway High School who was ordered not to wear a T-shirt to school that
I. Factual Background
Poway High School (“the School”) has had a history of conflict among its students over issues of sexual orientation. In 2003, the School permitted a student group called the Gay-Straight Alliance to hold a “Day of Silence” at the School which, in the words of an Assistant Principal, is intended to “teach tolerance of others, particularly those of a different sexual orientation.”
Because of these conflicts in 2003, when the Gay-Straight Alliance sought to hold another “Day of Silence” in 2004, the School required the organization to consult with the Principal to “problem solve” and find ways to reduce tensions and potential altercations. On April 21, 2004, the date of the 2004 “Day of Silence,” appellant Tyler Chase Harper wore a T-shirt to school on which “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED,” was handwritten on the front and “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27’ ” was handwritten on the back. There is no evidence in the record that any school staff saw Harper’s T-shirt on that day.
The next day, April 22, 2004, Harper wore the same T-shirt to school, except that the front of the shirt read “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED,” while the back retained the same message as before, “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27.’ ”
When Harper arrived at the front office, he met Assistant Principal Antrim. She told Harper that the “Day of Silence” was “not about the school promoting homosexuality but rather it was a student activity trying to raise other students’ awareness regarding tolerance in their judgement [sic] of others.” Antrim believed that Harper’s shirt “was inflammatory under the circumstances and could cause disruption in the educational setting.” Like LeMaster, she also recalled the altercations that had arisen as a result of anti-homosexual speech one year prior. According to her affidavit, she “discussed [with Harper] ways that he and students of his faith could bring a positive light onto this issue without the condemnation that he displayed on his shirt.” Harper was informed that if he removed the shirt he could return to class.
When Harper again refused to remove his shirt, the Principal, Scott Fisher, spoke with him, explaining his concern that the shirt was “inflammatory” and that it was the School’s “intent to avoid physical conflict on campus.” Fisher also explained to Harper that it was not healthy for students to be addressed in such a derogatory manner. According to Fisher, Harper informed him that he had already been “confronted by a group of students on campus” and was “involved in a tense verbal conversation” earlier that morning.
Harper spent the rest of the day in the school conference room doing his homework. At some point during that day, Deputy Sheriff Norman Hubbert, who served as the school resource officer for Poway High, came in to speak with Harper.
Toward the end of the school day, Assistant Principal Ed Giles spoke with Harper. Giles had discovered earlier in the day that Harper attended the same church that he had previously attended, and that he “knew [Harper’s] father personally and had attended Biblical studies that [Harper’s] father led on Tuesday nights.” According to Giles, he went to speak with Harper “out of respect to [Harper] and his family” and “to make sure he was alright.” Giles told Harper that he understood “where he was coming from” but wished that he could “express himself in a more positive way.” Giles also said that he shared the same Christian faith as Harper, but that as a school employee, he had to watch how he expressed his beliefs and that when he came to work, he had to “leave his faith in [the] car.” Giles then asked Harper to “consider other alternatives that would be more positive and non-confrontational,” including sponsoring activities through the campus Bible Club.
After his conversation with Giles, Harper remained in the office for the last period of the day, after which he was instructed to proceed directly off campus. Harper was not suspended, no disciplinary record was placed in his file, and he received full attendance credit for the day.
II. Procedural History
On June 2, 2004, Harper filed a lawsuit in district court against Poway Unified School District and certain named individuals in their individual and official capacities. Harper alleged five federal causes of action — violations of his right to free speech, his right to free exercise of religion, the Establishment Clause, the Equal Protection Clause, and the Due Process Clause — and one state law claim based on California Civil Code § 52.1, which creates a private cause of action for the violation of individual federal and state constitutional rights. On June 22, 2004, the School filed a motion to dismiss, and on July 12, 2004, Harper filed a motion for a preliminary injunction seeking to enjoin the school from “continuing [its] violation of the constitutional rights of Plaintiff Tyler Chase Harper.” On November 4, 2004, the district court granted the School’s motion to dismiss as to Harper’s equal protection, due process,
We have jurisdiction to review the district court’s denial of the preliminary injunction motion under 28 U.S.C. § 1292(a)(1).
IY. Standard and Scope of Review
For a district court to grant a preliminary injunction, the moving party must demonstrate either “(1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001). “Each of these two formulations requires an examination of both the potential merits of the asserted claims and the harm or hardships faced by the parties.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 965 (9th Cir.2002). “These two alternatives represent extremes of a single continuum, rather than two separate tests.” Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir.1999) (citation and internal quotation marks omitted). Accordingly, “the greater the relative hardship to the moving party, the less probability of success must be shown.” Id. (citation and internal quotation marks omitted).
The district court concluded, and the School concedes on appeal, that because Harper’s First Amendment claims survived the motion to dismiss, Harper made the necessary showing of irreparable harm. See Sammartano, 303 F.3d at 973 (internal quotation marks omitted) (“[A] party seeking preliminary injunctive relief in a First Amendment context can establish irreparable injury sufficient to merit the grant of relief by demonstrating the existence of a colorable First Amendment claim.”). The balance of hardships does not, however, tip in his favor.
We review a district court’s grant or denial of a preliminary injunction for abuse of discretion. A & M Records, Inc., 239 F.3d at 1013. We will reverse “only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.” El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1038 (9th Cir.2003) (citation and internal quotation marks omitted). Where, as here, the appellant does not dispute the district court’s factual findings, we are required to determine “whether the court employed the appropriate legal standards governing the issuance of a preliminary injunction and whether the district court correctly apprehended the law with respect to the underlying issues in the case.” A & M Records, Inc., 239 F.3d at 1013 (internal quotation and citation omitted). The district court’s interpretation of the underlying legal principles is subject to de novo review. Id. We may affirm the district court’s order “on any ground supported by the record even if it differs from the rationale of the district court.” Nat’l Wildlife Fed’n v. United States Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir.2004).
I. Freedom of Speech Claim
The district court concluded that Harper failed to demonstrate a likelihood of success on the merits of his claim that the School violated his First Amendment right to free speech because, under Tinker v. Des Moines Indep. Cmty. Sch. Dist., the evidence in the record was sufficient to permit the school officials to “reasonably ... forecast substantial disruption of or material interference with school activities.” 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Harper contends that the district court erred in rejecting his free speech claim on three grounds: (1) his speech is protected under the Supreme Court’s holdings in Tinker and Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); (2) the School’s actions and policies amount to viewpoint discrimination under Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); and (3) the School’s dress code and speech policies are over-broad under Bd. of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987).
a. Student Speech Under Tinker
Public schools are places where impressionable young persons spend much of their time while growing up. They do so in order to receive what society hopes will be a fair and full education — an education without which they will almost certainly fail in later life, likely sooner rather than
The courts have construed the First Amendment as applied to public schools in a manner that attempts to strike a balance between the free speech rights of students and the special need to maintain a safe, secure and effective learning environment. See, e.g., Tinker, 393 U.S. at 507, 89 S.Ct. 733 (balancing the need for “scrupulous protection of Constitutional freedoms of the individual” against the need of schools to perform their proper educational function). This court has expressly recognized the need for such balance: “States have a compelling interest in their educational system, and a balance must be met between the First Amendment rights of students and preservation of the educational process.” LaVine v. Blaine Sch. Dist., 257 F.3d 981, 988 (9th Cir.2001). Although public school students do not “shed their constitutional rights to freedom of speech or expression at the sehoolhouse gate,” Tinker, 393 U.S. at 506, 89 S.Ct. 733, the Supreme Court has declared that “the First Amendment rights of students in public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.”
This court has identified “three distinct areas of student speech,” each of which is governed by different Supreme Court precedent: (1) vulgar, lewd, obscene, and plainly offensive speech which is governed by Fraser,
In Tinker, the Supreme Court confirmed a student’s right to free speech in public schools.
i. The Rights of Other Students
In Tinker, the Supreme Court held that public schools may restrict student speech which “intrudes upon ... the rights of other students” or “collides] with the rights of other students to be secure and to be let alone.” 393 U.S. at 508, 89 S.Ct. 733. Harper argues that Tinker’s reference to the “rights of -other students” should be construed narrowly to involve only circumstances in which a student’s right to be free from direct physical confrontation is infringed. Drawing on the Fifth Circuit’s opinion in Blackwell v. Issaquena County Bd. of Ed., 363 F.2d 749, 751 (5th Cir.1966), which the Supreme Court cited in Tinker, Harper contends that because the speakers in Blackwell “accosted other students by pinning the buttons on them even though they did not ask for one,” a student must be physically accosted in order to have his rights infringed.
Notwithstanding the facts of Blackwell, the law does not support Harper’s argument. This court has explained that vulgar, lewd, obscene, indecent, and plainly offensive speech “by definition, may well ‘impinge[] upon the rights of other students,’ ” even if the speaker does not di
We conclude that Harper’s wearing of his T-shirt “collides] with the rights of other students” in the most fundamental way. Tinker, 393 U.S. at 508, 89 S.Ct. 733. 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. As Tinker clearly states, students have the right to “be secure and to be let alone.” Id,. Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society.
Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn.
Those who administer our public educational institutions need not tolerate verbal assaults that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development.
The dissent claims that we should not take notice of the fact that gay students are harmed by derogatory messages such as Harper’s because there is no “evidence” that they are in fact injured by being shamed or humiliated by their peers. See dis. op. at 1198-1199. It is simply not a novel concept, however, that such attacks on young minority students can be harmful to their self-esteem and to their ability to learn. As long ago as in Brown v. Board of Education, the Supreme Court recognized that “[a] sense of inferiority affects the motivation of a child to learn.” 347 U.S. at 494, 74 S.Ct. 686 (internal quotation marks omitted). If a school permitted its students to wear shirts reading, “Negroes: Go Back To Africa,” no one would doubt that the message would be harmful to young black students. So, too, in the case of gay students, with regard to messages such as those written on Harper’s T-shirt.
The dissent takes comfort in the fact that there is a political disagreement regarding homosexuality in this country. See dis. op. at 1197. We do not deny that there is, just as there was a longstanding political disagreement about racial equality that reached its peak in the 1950’s and about whether religious minorities should hold high office that lasted at least until after the 1960 presidential election,
Our dissenting colleague also appears to believe that the fact that Harper wore his T-shirt in response to a “Day of Silence” somehow lessens the injurious effect of his act because by participating in the gay rights event, gay students “perforce acknowledge that their status is not universally admired or respected.” Dis. op. at 1200. This argument is completely without merit. The fact that gays, or for that matter blacks, Jews, or Latinos, recognize that they are the subject of prejudice and are not “respected” or considered equal by some in certain public schools in this country does not mean that they are not injured when the usually unspoken prejudice turns into harmful verbal conduct. Moreover, the dissent’s assertion that gay students may prefer to see the demeaning
What we hold in this opinion is a far cry from what the dissent suggests. We do not hold that schools may “define civic responsibility and then ban opposing points of view.” Id. at 1196 n. 7. The question of what types of assemblies schools should or may conduct regarding controversial public issues or what types of speech students may otherwise generally engage in regarding such issues is not before us. Different circumstances require different results. We consider here only whether schools may prohibit the wearing of T-shirts on high school campuses and in high school classes that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students and that may cause them significant injury. We do not believe that the schools are forbidden to regulate such conduct. Nor, contrary to the dissent, do we believe that because a school sponsors or permits a “Day of Tolerance” or a “Day of Silence” minority students should be required to publicly “[c]onfront[ ]” and “refut[e]” demeaning verbal assaults on them — that they may be left with no option other than to try to justify their sexual practices to the entire student body or explain to all their fellow students why they are not inferior or evil. Id. at 1200. The First Amendment does not require that young students be subjected to such a destructive and humiliating experience.
In his declaration in the district court, the school principal justified his actions on the basis that “any shirt which is worn on campus which speaks in a derogatory manner towards an individual or group of individuals is not healthy for young people.... ” If, by this, the principal meant that all such shirts may be banned under Tinker, we do not agree. T-shirts proclaiming, “Young Republicans Suck,” or “Young Democrats Suck,” for example, may not be very civil but they would certainly not be sufficiently damaging to the individual or the educational process to warrant a limitation on the wearer’s First Amendment rights. Similarly, T-shirts that denigrate the President, his administration, or his policies, or otherwise invite political disagreement or debate, including debates over the war in Iraq, would not fall within the “rights of others” Tinker prong.
Although we hold that the School’s restriction of Harper’s right to carry messages on his T-shirt was permissible under Tinker, we reaffirm the importance of preserving student speech about controversial issues generally and protecting the bedrock principle that students “may not be confined to the expression of those sentiments that are officially approved.” Tinker, 393 U.S. at 511, 89 S.Ct. 733; see also Fraser, 478 U.S. at 681, 106 S.Ct. 3159 (noting students’ “freedom to advocate unpopular and controversial views in schools and classrooms”). It is essential that students have the opportunity to engage in full and open political expression, both in and out of the school environment. Engaging in controversial
Finally, we emphasize that the School’s actions here were no more than necessary to prevent the intrusion on the rights of other students. Aside from prohibiting the wearing of the shirt, the School did not take the additional step of punishing the speaker: Harper was not suspended from school nor was the incident made a part of his disciplinary record.
Under the circumstances present here, we conclude that the School’s actions did not extend beyond the scope of the restrictions permitted by Tinker, and that the district court did not abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the merits of his free speech claim.
ii. Substantial Disruption
The district court concluded that Harper had failed to demonstrate a likelihood of success on the merits of his free speech claim because there was sufficient evidence to permit the school officials to “reasonably ... forecast substantial disruption of
In light of our conclusion regarding the application of the “rights of others” prong of Tinker, we have no cause to decide whether the evidence would be sufficient to warrant denial of a preliminary injunction under the “substantial disruption” prong as well.
b. Viewpoint Discrimination
In reaching our decision that Harper may lawfully be prohibited from wearing his T-shirt, we reject his argument that the School’s action constituted impermissible viewpoint discrimination. The government is generally prohibited from regulating speech “when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. However, as the district court correctly pointed out, speech in the public schools is not always governed by the same rules that apply in other circumstances. See Hazelwood, 484 U.S. at 266, 108 S.Ct. 562; Fraser, 478 U.S. at 685, 106 S.Ct. 3159; West, 206 F.3d at 1366 (schools may ban student speech that “could well be considered a form of political speech to be afforded First Amendment protection outside the educational setting”). Indeed, the Court in Tinker held that a school may prohibit student speech, even if the consequence is viewpoint discrimination, if the speech violates the rights of other students or is materially disruptive. See Tinker, 393 U.S. at 511, 89 S.Ct. 733 (stating school cannot prohibit “expression of one particular opinion” unless it makes a specific showing of consti
The dissent claims that although the School may have been justified in banning discussion of the subject of sexual orientation altogether, it cannot “gag[ ] only those who oppose the Day of Silence.” Dis. op. at 1197. As we have explained, however, although Tinker does not allow schools to restrict the non-invasive, non-disruptive expression of political viewpoints, it does permit school authorities to restrict “one particular opinion” if the expression would “impinge upon the rights of other students” or substantially disrupt school activities. Tinker, 393 U.S. at 509, 511, 89 S.Ct. 733. Accordingly, a school may permit students to discuss a particular subject without being required to allow them to launch injurious verbal assaults that intrude upon the rights of other students.
“A school need not tolerate student speech that is inconsistent with its basic educational mission, [] even though the government could not censor similar speech outside the school.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (citation and internal quotation marks omitted). Part of a school’s “basic educational mission” is the inculcation of “fundamental values of habits and manners of civility essential to a democratic society.” Fraser, 478 U.S. at 681, 106 S.Ct. 3159 (internal quotation marks omitted). For this reason, public schools may permit, and even encourage, discussions of tolerance, equality and democracy without being required to provide equal time for student or other speech espousing intolerance, bigotry or hatred. As we have explained, supra pp. 1182-1183, because a school sponsors a “Day of Religious Tolerance,” it need not permit its students to wear T-shirts reading, “Jews Are ChrisNKillers” or “All Muslims Are Evil Doers.” Such expressions would be “wholly inconsistent with the ‘fundamental values’ of public school education.” Id. at 685-86, 106 S.Ct. 3159. Similarly, a school that permits a “Day of
We again emphasize that we do not suggest that all debate as to issues relating to tolerance or equality may be prohibited. As we have stated repeatedly, we consider here only the question of T-shirts, banners, and other similar items bearing slogans that injure students with respect to their core characteristics. Other issues must await another day.
2. Free Exercise of Religion Claim
Harper also contends that the district court erred because he was entitled to a preliminary injunction as a result of the School’s violation of his rights under the Free Exercise Clause. -He asserts that his wearing of the T-shirt was “motivated by sincerely held religious beliefs” regarding homosexuality
The Free Exercise Clause of the First Amendment provides that Congress shall make no law “prohibiting the free exercise” of religion. U.S. Const, amend. I. The Clause prohibits the government from “compelling] affirmation of religious belief, punish[ing] the expression of religious doctrines it believes to be false, imposing] special disabilities on the basis of religious views or religious status, or lending] its power to one or the other side in controversies over religious authority or dogma.” Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (internal quotation marks and citations omitted).
In Sherbert v. Vemer, the Supreme Court held that governmental actions that substantially burden a religious belief or practice must be justified by a compelling state interest and must be narrowly tailored to serve that interest. 374 U.S. 398, 402-03, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). The Sherbert test was later largely discarded in Smith, which held that the “right of free.exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (citation omitted). The Court held that a neutral law of general applicability need not be supported by a compelling governmental interest even though it has the incidental effect of burdening religion. See id. at 885, 110 S.Ct. 1595; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531,
Harper does not contend that the School’s prohibition against his wearing his T-shirt was motivated by other than secular reasons or that it was applied to him because of his religious views. Nor is there anything in the record to suggest that other students wearing T-shirts similarly demeaning of gay and lesbian members of the student body would be treated differently, Christians or not.
We seriously doubt that there is “a fair probability or a likelihood” that Harper’s claim that a companion right — free speech — has been violated will succeed on the merits, as required by Miller. 176 F.3d at 1207 (internal quotation marks omitted).
Assuming that Sherbert applies, we must first consider whether the School’s actions “substantially burden” a religious practice or belief. The record simply does not demonstrate that the School’s restriction regarding Harper’s T-shirt imposed a substantial burden upon the free exercise of Harper’s religious beliefs. There is no evidence that the School “compelled] affirmation of a repugnant belief,” “penalize[d] or discriminate^] against [Harper] because [he] hold[s] religious views abhorrent to the authorities,” or “conditioned] the availability of benefits upon [Harper’s] willingness to violate a cardinal principle of [his] religious faith.” Sherbert, 374 U.S. at 402, 406, 83 S.Ct. 1790. Nor did the School “lend its power to one or the other side in controversies over religious authority or dogma,” or “punish the expression of religious doctrines it believes to be false.” Smith, 494 U.S. at 877, 110 S.Ct. 1595.
Despite Harper’s allegation that the School “punished” him for expressing his religious views, the record demonstrates the contrary: the School did not punish Harper at all. It simply prohibited him from wearing the offensive and disruptive shirt and required him to refrain from attending class for a portion of a day, if he insisted on.continuing to wear it. Nor did the restriction imposed on Harper’s wearing of the T-shirt constitute a substantial limitation on his right to express his religious views. No one has the right to proclaim his views at all times in all manners in all places, regardless of the circumstances, and Harper does not contend that his religion suggests otherwise. Harper remains free to express his views, whatever their merits, on other occasions and in other places. The prohibition against the wearing of a T-shirt in school does not constitute a substantial burden on the exercise of his religious beliefs.
Even if a religious creed, or an individual’s interpretation of that creed, could be said to require its adherents to proclaim their religious views at all times and in all places, and to do so in a manner that interferes with the rights of others, the First Amendment would not prohibit the state from banning such disruptive conduct in certain circumstances, including on a high school campus. The Constitution does not authorize one group of persons to force its religious views on others or to compel others to abide by its precepts. Nor does it authorize individuals to engage in conduct, including speech, on the grounds of public schools, that is harmful to other students seeking to obtain a fair and equal education — even if those individuals hold a sincere belief that the principles of their religion require them to discriminate against others, or to publicly proclaim their discriminatory views whenever they believe that “evil” practices are being condoned. See Sherbert, 374 U.S. at 403, 83 S.Ct. 1790 (internal quotation marks omitted) (“[E]ven when the action is in accord with one’s religious convictions, it
Because there is no evidence that the School’s restriction on Harper’s wearing of his T-shirt substantially burdened a religious practice or belief, and because the School has a compelling interest in providing a proper educational environment for its students and because its actions were narrowly tailored to achieve that end,
The district court rejected Harper’s contention. Indeed, there is no evidence in the record that the school representatives sought to change Harper’s religious beliefs. Harper’s complaint avers that Detective Hubbert “proposed to [Harper] that as a member of the Christian faith, he should understand that Christianity was based on love not hate, and that [he] should not be offensive to others.” Hubbert’s homily did not constitute an attempt to change Harper’s religious views, simply his offensive behavior; at most, it was, as the district court concluded, an “option[] presented to and left with” Harper. The statements that the message on Harper’s shirt was “inflammatory” and would be harmful to the educational environment were merely statements of fact that represented the School’s informed judgment. More important, like Hubbert’s statement, they were designed to affect Harper’s behavior not his beliefs. As for Giles’ comments, his affidavit stated that he did not tell Harper to “leave his own faith in the car,” but explained that, as a school employee, he, Giles, had to leave his own Christian faith in the car when he came to work. While Giles’ statement might also be construed as an attempt to encourage Harper to change his conduct — to refrain, while on campus, from expressing religious views that denigrate others — it cannot be characterized as an attempt to change his views. In fact, rather than tell Harper to change his beliefs, Giles encouraged him to join the campus Bible Club so that he could become part of an “activity that would express his [Christian] opinions in a positive way on campus,” an activity that was wholly consistent with Harper’s religious views. The record thus does not support Harper’s claim that the School violated his free exercise right by “attempting to change” his religious views.
Moreover, school officials’ statements and any other school activity intended to teach Harper the virtues of tolerance constitute a proper exercise of a
The Constitution does not preclude school districts from teaching the essential elements of democracy or otherwise performing their proper educational mission simply because some individuals or groups may assert that their religious views are inconsistent with the lessons taught as a part of that mission. Accordingly, we affirm the district court’s decision that Harper was not entitled to a preliminary injunction on the basis of his free exercise claim.
3. Establishment Clause Claim
Finally, we consider the district court’s conclusion that Harper did not demonstrate a likelihood of success on the merits of his claim that the School violated the Establishment Clause by attempting to “coerce” him into changing his religious beliefs that “homosexuality is harmful to both those who practice it and the community at large.”
Harper’s Establishment Clause claim as presented on appeal appears to be simply a restatement of his Free Exercise claim. In fact, as the Supreme Court has noted, its Establishment Clause cases “for the most part have addressed governmental efforts to benefit religion or particular religions,” and thus allegations of an “attempt to disfavor” a religion, such as Harper’s, are properly analyzed under the Free Exercise Clause. Lukumi, 508 U.S. at 532, 113 S.Ct. 2217 (emphasis added). However, in the interest of thoroughness, we briefly address Harper’s claim of “coercion” under the Establishment Clause.
Harper bases his claim almost entirely on the Supreme Court’s statement in Lee v. Weisman, that “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’ ”
Government conduct does not violate the Establishment Clause when (1) it has a secular purpose, (2) its principal and primary effect neither advances nor inhibits religion, and (3) it does not foster excessive government entanglement in religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). For the reasons we have already explained, the record supports the district court’s conclusion that the School’s actions “had a secular purpose, ie., promoting tolerance, and not advancing or inhibiting religion.” It is also clear from the record that the primary effect of the School’s banning of the T-shirt was not to advance or inhibit religion but to protect and preserve the educational environment and the rights of other members of the student body. Nor can there be any question in this case of excessive government entanglement in religion. Finally, as we have already discussed, there is no evidence in the record that school officials attempted to change Harper’s religious beliefs. A fortiori, there is no evidence that they attempted to coerce Harper into changing his beliefs. For all the above reasons, we hold that the district court did not abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the merits of his Establishment Clause claim.
4. Other Claims
In addition to the denial of his preliminary injunction motion, Harper asks that we review the district court’s dismissal of his due process and equal protection causes of action, as well as the court’s grant of qualified immunity to the individual defendants, under the doctrine of “pendent appellate jurisdiction.” We may exercise pendent appellate jurisdiction “over rulings that are inextricably intertwined with or necessary to ensure meaningful review of decisions that are properly before us on interlocutory appeal.” Poulos v. Caesars World, Inc., 379 F.3d 654, 668 (9th Cir.2004) (internal quotation marks omitted). In order for pendent issues to be “inextricably intertwined” they must either “ ‘(a) be so intertwined that we must decide the pendent issue in order to review the claims properly raised on interlocutory appeal ... or (b) resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.’ ” Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.2003) (quoting Cunningham v. Gates, 229 F.3d 1271, 1285 (9th Cir.2000)).
With regard to Harper’s due process cause of action, it is based on his claim that the School’s dress code is impermissibly vague in violation of the Due Process Clause. As we have already explained, see supra note 11, we need not
VI. Conclusion
We hold that the district court did not abuse its discretion in denying the preliminary injunction. Harper failed to demonstrate that he will likely prevail on the merits of his free speech, free exercise of religion, or establishment of religion claims. In fact, such future success on Harper’s part is highly unlikely, given the legal principles discussed in this opinion. The Free Speech Clause permits public schools to .restrict student speech that intrudes upon the rights of other students. Injurious speech that may be so limited is not immune from regulation simply because it reflects the speaker’s religious views. Accordingly, we affirm the district court’s denial of Harper’s motion for a preliminary injunction.
AFFIRMED; REMANDED for further proceedings consistent with this opinion.
Exhibit A
Exhibit A
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. These background facts are based on the limited record before us which includes five declarations by school officials, and declarations from Harper, his father, Ron Harper, and a fellow student, Joel Rhine.
. In his complaint, Harper alleges that he believes "the true purpose” of the "Day of Silence” was "to endorse, promote and encourage homosexual activity.”
. On the "Day of Silence,” participating students wore duct tape over their mouths to symbolize the silencing effect of intolerance upon gays and lesbians; these students would not speak in class except through a designated representative. Some students wore black T-shirts that said "National Day of Silence” and contained a purple square with a yellow equal sign in the middle. The Gay-Straight Alliance, with the permission of the School, also put up several posters promoting awareness of harassment on the basis of sexual orientation.
.A copy of a photograph of the T-shirt is attached as Exhibit A.
. In his affidavit, Harper characterized these conversations with other students as "peaceful discussions wherein differing viewpoints were communicated.”
. We note that conflicts over homosexuality at Poway High School have not been limited to the incidents surrounding a "Day of Silence.” Two former students recently won a suit against the School for failing to protect them from students who harassed them because they are gay. See Dana Littlefield, Two Gay Students Were Harassed, Jury Finds, San Diego Union-Trib., June 9, 2005, at B2. During the trial, one of the students testified that Poway "students repeatedly called him names, shoved him in the hallways, threw food at him and spit on him,” and "that he heard other students make disparaging remarks about gays and lesbians on a nearly daily basis.” Id.
.Hubbert, who is a detective with the San Diego County Sheriff, was on campus that day because someone, purporting to be a parent, had called the School that morning com
. The district court dismissed with prejudice only Harper’s due process challenge.
. We note that on November 17, 2004, thirteen days after the district court rendered its decision and two days prior to filing his Notice of Appeal with this court, Harper filed a First Amended Verified Complaint adding his sister, Kelsie, who is a freshman at Poway High School, as a plaintiff. On February 23, 2005, the district court granted in part and denied in part the School’s motion to dismiss the First Amended Complaint. Because the
. The district court concluded that "balancing the needs of the School to keep all their students safe coupled with the foreseeable vision that other students may feel free to exhibit these types of expressions that would interfere with the work of the school and violate the rights of others against [Harper's] interests does not tip the scales sharply in [Harper's] favor.” As our analysis of Tinker below illustrates, not only does the balance of hardships not tip sharply in Harper's favor, but it does not tip in his favor at all.
. We need not rule upon the validity of the School’s dress code or other anti-harassment policies in order to determine whether the district court abused its discretion in denying the preliminary injunction. Harper’s motion for a preliminary injunction sought only to enjoin school officials "from continuing their violation of the constitutional rights of Plaintiff Tyler Chase Harper.” The only violation alleged was that Harper was precluded from wearing his T-shirt with its demeaning message while at school. The motion did not seek to enjoin the enforcement of the School’s dress code or any other school policies against any and all students, but sought only to stop the violation of Harper’s purported constitutional right to wear his T-shirt. Our affirmance of the district court order does not depend upon the existence of a valid school policy or code. Under Tinker, the School is permitted to prohibit Harper’s conduct, with or without a valid anti-harassment or other policy, if it can demonstrate that the restriction was necessary to prevent either the violation of the rights of other students or substantial disruption of school activities. The record is clear that even though Harper’s teacher and Vice Principal Antrim stated that the T-shirt violated the dress code, the school officials made plain to Harper that the reason he could not wear the T-shirt was because of its effect upon other students and its disruptive effect upon the educational environment, rather than because it was prohibited by a dress code. The district judge apparently concluded that the validity of the School’s anti-harassment policies was not before him, or that it was not necessary to decide that question, and we cannot say that his determination was unreasonable. Finally, we would prefer not to make even a preliminary judgment as to the constitutionality of the School’s dress code or anti-harassment policies without the district court first having considered the question. Of course, following remand, the district court may do so at the appropriate time or upon the appropriate motion. In contrast, our dissenting colleague would have us engage on appeal in a sweeping examination ab initio of the validity of a complicated series of policies' — an examination that would cause us to discuss prematurely a number of controversial constitutional issues. See dis. op. at 1201 - 1207. We see no need for such an exercise of our jurisdiction on this appeal.
. As of the fall of 2005, approximately eighty-eight percent of elementary and secondary students in the United States attended public schools. See Digest of Education Statistics, 2004, Nat’l Ctr. for Educ. Statistics (2004), available at http://nces.ed.gov/programs/diges1/d04/. Most of the rest attended religious schools. See Stephen p. Broughman & Kathleen W. Pugh, Characteristics of Private Schools in the United States: Results From the 2001 — 2002 Private School Universe Survey (U.S. Department of Education, National Center for Education Statistics) (2005).
. Although Harper correctly points out that California law provides greater protection for student speech than federal law, see Cal. Educ.Code § 48950(a), he did not raise a state law claim in his preliminary injunction motion before the district court. Nor did he question, as he does in his brief to us, the constitutionality of the correlative provisions of the California Education Code that provide greater protection than federal law against harassment of students on the basis of sexual orientation. See Cal. Educ.Code §§ 200, 201, 220. Accordingly, we do not rely on or resolve any state law questions here.
. Because we decide Harper's free speech claim on the basis of Tinker, we need not consider whether his speech was "plainly offensive” under Fraser.
. Neither party here claims that Harper's speech is "school-sponsored” and thus governed by Hazelwood.
. In Tinker, the Supreme Court held that a public school could not ban students from wearing black armbands protesting the Vietnam war where the "silent, passive expression of opinion [was] unaccompanied by any disorder or disturbance,” and there was no evidence that the display "collided] with the rights of other students to be secure and to be let alone.” 393 U.S. at 508, 89 S.Ct. 733.
. The first part of our colleague’s dissent is devoted to a discussion of whether there was sufficient evidence that the wearing of Harper's T-shirt caused substantial disruption, the Tinker prong on which the district court relied but which is not relevant to our holding. See dis. op. at 1192-1196. The last part of the dissent also deals with a subject we need not and do not address: what the dissent terms the School's "harassment policy.” Id. at 1201 - 1207; see also supra n. 11. Oddly, the dissent spends only a relatively minor part of its discussion on the determinative issue here, the impermissible intrusion on the rights of gay and lesbian students. Id. at 1197 - 1201. Even more oddly, in its Conclusion the dissent suggests that speech that is fundamentally offensive to minority students may be constitutionally limited and quarrels only with whether such a limitation is consistent with the wording of Tinker. Id. at 1207. It also suggests that the Supreme Court might properly modify Tinker and validate our holding. Id. at 1207. We disagree that any modification of Tinker is required or desirable. All that is necessary is a fair reading of its plain language, as we explain in the following section.
. There is nothing in Tinker that remotely supports the dissent's contention that the rights to "be secure and to be let alone” are limited to rights such as those that protect against "assault, defamation, invasion of privacy, extortion and blackmail.” Dis. op. at 1198. Security and privacy entail far more than freedom from those torts. Nor does the dissent offer any reason why the rights to security and privacy do not include freedom from verbal assaults that cause psychological injury to young people.
. California law provides that “[a]ll pupils have the right to participate fully in the educational process, free from discrimination and harassment.” Cal. Educ.Code § 201(a). The dissent expostulates on the meaning of the term "harassment” and speculates as to whether the California statute may be contrary to the First Amendment, all of which is irrelevant here because we do not rely on the statute in reaching our decision. See dis. op. at 1197-1198.
. In fact, California schools like Poway High are required by law “to minimize and eliminate a hostile environment on school grounds that impairs the access of pupils to equal educational opportunity.” Cal. Educ.Code § 201(f).
. Saxe considered the validity of a school district's anti-harassment policy, a question we do not address here. See supra n. 11. Although in its discussion of a provision regarding "hostile environment,” Saxe briefly alludes to the "interference with the rights of
. As noted supra, California law explicitly recognizes the right of students to be free from harassment on the basis of sexual orientation. See Cal. Educ.Code § 200, 201. These provisions were enacted not in a vacuum, but out of a recognition on the part of the state legislature of "an urgent need to prevent and respond to acts of hate violence and bias-related incidents that are occurring at an increasing rate in California’s public schools.” Id. at § 201(d). We also observe that federal law provides public school students some protection against harassment and discriminatory treatment based on sexual orientation. For example, in Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134-35 (9th Cir.2003), we held that the Equal Protection Clause protects against school districts' indifference to certain kinds of negative speech aimed at gay students. See also Mayes, supra, at 643 (observing that harassment based on sexual orientation may be actionable under Title IX as harassment based on sex).
. There is much literature to this effect. See supra pp. 1178-1179. Our dissenting colleague's notion of "evidence” appears to be rather odd. It seems to consist largely of motion pictures and television shows. The dissent draws conclusions that it is "not unusual in a high school classroom for students to be 'off-task' ” and that politics and other subjects "are the ordinary subjects of discourse in high school corridors” on the basis of our colleague’s viewing of a number of popular entertainment features. See dis. op. at 1194 n. 2 & 1194 n. 3. Perhaps he would prefer us to cite Brokeback Mountain (Paramount Pictures 2005) or The Matthew Shepard Story (2002), as evidence of the harmful effects of anti-gay harassment rather than simply stating that which, to anyone familiar with or in any way sensitive to, the history or effect of discrimination, is a self-evident fact.
. We should point out that we are considering here whether to reverse a denial of a preliminary injunction. The extent to which a self-evident proposition must be established in order to avoid such a reversal under an abuse of discretion standard is not necessarily the same as may be required at a trial on the merits, although we express no view on the latter question.
. Although we do not rely on the California statute to support our holding, we note that the Legislature, in the California Schools Hate Violence Reduction Act of 1995, declared: "Harassment on school grounds directed at an individual on the basis of personal characteristics or status creates a hostile environment and jeopardizes equal educational opportunity as guaranteed by the California Constitution and the United States Constitution.” Cal. Educ.Code. § 201(c) (emphasis added).
.For example, in the late 19th century, James G. Blaine ran for President in a campaign that is remembered for its slogan of "Rum, Romanism and Rebellion.” See Richard G. Bacon, Rum, Romanism and Romer, 6 Del. L.Rev. 1, 39-40 (2003); see also Joseph P. Viteritti, Davey’s Plea: Blaine, Blair, Witters, and the Protection of Religious Freedom, 27 Harv. J.L. & Pub. Pol’y 299, 311 (2003) (citation omitted) (observing that Blaine's campaign for the Republican nomination "was built around his (and the party's) opposition to 'Rum, Romanism, and Rebellion.' ”).
. The dissent suggests that our decision might somehow allow a school to restrict student T-shirts that voice strongly-worded opposition to the war in Iraq. See dis. op. at 1197. That is not so. Our colleague ignores the fact that our holding is limited to injurious speech that strikes at a core identifying characteristic of students on the basis of their membership in a minority group. The antiwar T-shirts posited by the dissent constitute neither an attack on the basis of a student's core identifying characteristic nor on the basis of his minority status.
. We do not consider here whether remarks based on gender warrant similar treatment, preferring to leave that question to another time. We recognize, however, that problems of gender discrimination remain serious and that they exist throughout learning institutions, from the public and religious schools to institutions of higher learning, not excluding the most prominent institutions in the nation.
Our dissenting colleague worries that offensive words directed at majority groups such as Christians or whites will not be covered by our holding. See dis. op. at 1201. There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority. In any event, any verbal assault targeting majorities that might justify some form of action by school officials is more likely to fall under the "substantial disruption” prong of Tinker or under the Fraser rule permitting schools to prohibit "plainly offensive” speech. 478 U.S. at 683, 106 S.Ct. 3159; cf. Frederick v. Morse, 439 F.3d 1114, 1122 n. 44 (9th Cir.2006) (observing that Fraser "only enables schools to prevent the sort of vulgar, obscene, lewd or sexual speech that, specially with adolescents, readily promotes disruption”). We do not exclude, however, the possibility that some verbal assaults on the core characteristics of majority high
. Our recent decision in Frederick v. Morse, 439 F.3d 1114 (9th Cir.2006), is in no respect inconsistent with this opinion. In Frederick, we held that a public high school's suspension of a student for displaying off campus, during the running of the Winter Olympics Torch Relay, a banner that read "Bong Hits 4 Jesus,” violated Tinker. Frederick differs from the present case in four fundamental ways. First and foremost, Frederick did not address the "intrudes upon the rights of others” prong of Tinker, the ground upon which we base our holding here. Rather, the only issue in Frederick was whether the other Tinker prong'— "substantial disruption” — was applicable. Second, in Frederick we concluded that the school's actions did not meet the "substantial disruption” prong because the school officials conceded that they punished the student’s display of the banner not out of "concern that it would cause disruption” but because "the speech promotes a social message contrary to the one favored by the school.” Id. at 1117-18. Here, although in view of our holding, we need not (and do not) consider the "substantial disruption” prong of Tinker, the School presented evidence that it restricted Harper’s wearing of the T-shirt because it expected that his doing so would cause substantial disruption. Third, Frederick involved punishing student speech that took place "outside the classroom, across the street from the school, during a non-curricular activity that was only partially supervised by school officials.” Id. at 1123. By contrast, Harper wore the offending T-shirt not only on campus, but inside the classroom. Finally, in the case before us, the School adopted the least restrictive means of curing the injury; it simply forbade the wearing of the garment. In Frederick, in contrast, the school authorities punished the student harshly for the purported (but non-existent) offense by suspending him for ten days. Id. at 1116.
. The cases on which Harper relies to support his viewpoint discrimination claim involve the entirely different question whether schools may deny student groups access to school resources on the basis of their religious viewpoint. See Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 386-87, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (school allowed use of school facilities for private groups, but prohibited "meetings for religious purposes”); Prince v. Jacoby, 303 F.3d 1074, 1090 (9th Cir.2002) (school allowed student clubs access to school facilities but excluded student Bible club). Those cases are not relevant here.
. We note, incidentally, that the incident in question occurred on the day after the “Day of Silence,” and not on the day itself.
. We do not, of course, consider whether Harper’s views are consistent with his religion, nor do we ask whether his religion truly encourages homophobic conduct. Similarly, we do not consider whether the- isolated excerpt from the New Testament, Romans 1:27, is representative of Christian doctrine generally. All such inquiries are beyond the judiciary’s authority. See Hernandez v. C.I.R., 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) ("It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”)
. "A law is one of neutrality and general applicability if it does not aim to 'infringe upon or restrict practices because of their religious motivation,’ and if it does not 'in a selective manner impose burdens only on conduct motivated by religious belieff.]’ ” San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1031 (9th Cir.2004) (quoting Lukumi, 508 U.S. at 546, 113 S.Ct. 2217).
. Harper does not argue that the School's ban on his wearing the injurious and demeaning T-shirt was arbitrary or capricious, only that it violated the First Amendment rights discussed herein.
. Although Harper refers to "other constitutional claims" and even "numerous constitutional claims,” the only claim that has the potential to justify his invoking of "hybrid” status is the free speech claim.
. The district court determined that, "without the free speech claim, plaintiff's free exercise claim does not require strict scrutiny.” It then ignored the free speech claim, apparently because it had already found that it was unlikely to succeed. Applying rational basis review, the court concluded that the School’s action was rationally based on a legitimate pedagogical concern, and that Harper failed to demonstrate that it was irrational or wholly arbitrary.
.We note that the School conceded in essence that the free speech claim was "color-able” for purposes of Harper's establishing "irreparable harm” — one of the factors that may in combination with others justify issuance of a preliminary injunction. See supra pp. 1173-1174. We need not consider, however, whether "colorable” has different meanings for purposes of irreparable harm under Sammartano, and for purposes of a hybrid claim under Miller, as we assume here that Harper’s free speech claim is colorable for the latter purpose as well.
. We have described the Sherbert test as requiring the weighing of three factors: (1) how much the state action interferes with the exercise of religious beliefs; (2) whether there is a compelling state interest justifying a burden on religious beliefs; and (3) whether accommodating those beliefs would unduly interfere with the fulfillment of the government interest. N.L.R.B. v. Hanna Boys Center, 940 F.2d 1295, 1305 (9th Cir.1991).
. As discussed earlier, the School did no more than necessary to further its compelling interest in protecting the rights of students and maintaining a healthy learning environment. It merely prohibited Harper from wearing the T-shirt at school, and did not even take the additional step of suspending or otherwise punishing him.
. The only other case upon which Harper relies for his coercion claim is Peloza v. Capistrano Unified Sch. Dist., in which this court observed that "[t]o permit [a teacher] to discuss his religious beliefs with students during school time on school grounds would violate the Establishment Clause.” 37 F.3d 517, 522 (9th Cir.1994). Like Lee, the case is inapposite as it involves the entirely different issue of school-sanctioned religious speech which "would have the primary effect of advancing
Dissenting Opinion
dissenting:
While I find this a difficult and troubling case, I can agree with neither the majority’s rationale nor its conclusion. On the record to date, the school authorities have offered no lawful justification for banning Harper’s t-shirt and the district court should therefore have enjoined them from doing so pending the outcome of this case. Harper, moreover, raised a valid facial challenge to the school’s harassment policy, and the district court should have enjoined the policy as well.
The T-shirt
As the majority correctly notes, school speech falls into three categories, each governed by its own standard. The first category involves school-sponsored speech, which is governed by Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 270-71, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). The second involves vulgar or plainly offensive speech, and it is governed by Bethel School District No. 403 v. Fraser, 478
Harper’s t-shirt was clearly not school sponsored, so the Hazelwood standard— highly deferential to school authorities— does not apply. Until recently, it was a closer question whether Harper’s t-shirt involved plainly offensive speech, which may be banned by the school under Fraser. See Scott v. School Bd. of Alachua County, 324 F.3d 1246, 1249 (11th Cir.2003) (per curiam) (upholding ban on Confederate flag under both Tinker and Fraser ). But our recent opinion in Frederick v. Morse, 439 F.3d 1114 (9th Cir.2006), puts this issue to rest, explaining that “plainly offensive” under Fraser is determined by the language used, not the idea conveyed. See id. at 1119-21. Since there was nothing offensive about the language of Harper’s t-shirt, the school authorities here cannot rely on Fraser.
If the school’s ban of the shirt is to be upheld, then, it must be because it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Tinker, 393 U.S. at 513, 89 S.Ct. 733.
1. School authorities may ban student speech based on the existence of “any facts which might reasonably [lead] school authorities to forecast substantial disruption.” Id. at 514, 89 S.Ct. 733. While we do not require school officials to be certain that disruption will occur, see LaVine v. Blaine Sch. Dist., 257 F.3d 981, 989 (9th Cir.2001), they must present “evidence that [the ban] is necessary to avoid material and substantial interference with schoolwork or discipline.” Tinker, 393 U.S. at 511, 89 S.Ct. 733 (emphasis added).
The school authorities here have shown precious little to support an inference that Harper’s t-shirt would “materially disrupt] classwork.” One teacher, David LeMaster, said that several students in class were “off-task talking about [the] content of ‘Chase’s shirt’ when they should have been working.” LeMaster decl. at 2. Surely, however, it is not unusual in a high school classroom for students to be “off-task.” The scene á faire of high school students bored or distracted in class is a
The remaining two pieces of evidence presented by the defendants do not involve disruption of classwork, and thus must be judged by the “substantial disorder” standard. Id. School authorities have far less latitude to ban speech that does not interfere with learning situations. Between classes, students are free — indeed encouraged — to engage in discussions that are not strictly school related. Politics, sports, movies, music and personal matters are the ordinary subjects of discourse in high school corridors and lunch rooms.
Defendants point to Harper’s own report that “he [had been] involved in a tense verbal conversation with a group of students” earlier that day, but this is hardly the stuff of which substantial disorder is made. Fisher decl. at 3. People — judges even^ — often have strong views and their discussions will naturally reflect this intensity of feeling. There is nothing at all wrong with that, and it normally does not lead to substantial disorder. There is no indication that Harper’s discussion turned violent or disrupted school activities. There is no evidence that it involved shouting or threats, or that it interfered with the passage of students to and from class. The discussion, tense though it may have been, did not have to be broken up by school authorities; rather, it seems to have come to a peaceful conclusion. The best proof that this “tense verbal conversation” did not cause substantial disorder is that the school authorities knew nothing about the incident until Harper himself reported it. The only thing one can infer from this evidence is that, whatever strong feelings Harper’s t-shirt may have aroused, it did not cause any disruption of school activities, substantial or otherwise.
The second piece of evidence on which the school authorities rely doesn’t involve Harper at all. It consists of surprisingly vague references to some incidents that had occurred a year earlier, “during the days surrounding the Day of Silence between certain gay and straight students.” Fisher decl. at 3. Poway High School Principal Scott E. Fisher describes the situation as follows: “For example, an altercation had occurred which required me to physically separate the students. Those students were disciplined for their actions.” Id. Assistant Principal Lynell An-trim has the following description:
The previous year, in April, 2003, the Day [of Silence] brought some volatile behavior between students, and there was an unsanctioned Straight-Pride Day a week or so later. No club organized*1195 that Straight Pride Day, but there were store-printed shirts with inflammatory messages and some hand-scripted T-shirts with derogatory remarks. Some students last year were asked to remove the shirts and did so. Other students had an altercation and were suspended for their actions.
Antrim decl. at 2. Finally, Assistant Principal Edward L. Giles explains as follows:
I told Ron Harper [Chase’s dad] of our concern for the safety of our students when they altered their clothes to carry messages that could be inflammatory or demeaning. I told him we had some situations in the past of physical altercations because someone took exception to a message concerning sexual orientation on another person. I explained to him we did not want messages that carried with them a negative tone.
Giles decl. at 4.
Evidence that derogatory messages on Ushirts had resulted in physical altercations between students in the past certainly could be relevant in determining whether Harper’s message would be likely to cause such disruption in the future. Unfortunately, however, it is not clear from these declarations that the messages on the t-shirts were in any way involved in the previous year’s altercation; Antrim’s declaration seems to say that the students involved in the altercation were different from the students who wore the t-shirts. Only Giles suggests a connection between the t-shirts and the altercations, and then somewhat obliquely.
There is, in fact, persuasive evidence that it would not. I have already mentioned the apparently peaceful confrontation Harper had with other students that very day; while words were exchanged, the students managed the situation well and without intervention from the school authorities. No doubt, everyone learned an important civics lesson about dealing with others who hold sharply divergent views. Moreover, Harper wore a t-shirt
But there is a more fundamental issue here. The record reveals quite clearly that Harper’s t-shirt was not an out-of-the-blue affront to fellow students who were minding their own business. Rather, Harper wore his t-shirt in response to the Day of Silence, a political activity that was sponsored or at the very least tolerated by school authorities.
Tolerance is a civic virtue,
I cannot imagine that my colleagues would approve this in other situations. Say, for example, one school group — perhaps the Young Republicans — were to organize a day of support for the war in Iraq by encouraging students to wear a yellow armband. And suppose that other students responded by wearing t-shirts with messages such as “Marines are Murderers” and “U.S. Bombs Kill Babies.” If a student whose brother was killed in Iraq assaulted a student wearing one of the anti-war t-shirts, would we approve a school’s response that banned the t-shirts but continued to permit the yellow armbands? See R.A.V. v. City of Saint Paul, 505 U.S. 377, 392, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (“[The government] has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”). Not to worry, says the majority, because students can still sport t-shirts that criticize “the President, his administration, or his policies, or otherwise invite political disagreement or debate.” Maj. op. at 1182. But acceptance of homosexuality is a political disagreement and debate. It’s not at all clear to me how one can criticize public officers and their policies without also addressing the controversial policies they adopt. For example, in 2004, San Francisco mayor Gavin Newsom issued marriage licenses to nearly 4,000 gay and lesbian couples. While some people view this as a courageous and principled action, others consider it an abomination. It’s not at all clear to me how those in the latter camp could go about expressing their vehement disagreement with Mayor Newsom’s policy without also expressing disdain for those who turned out at City Hall to take advantage of the policy-
Of the possible measures a school might take to deal with substantial disruption of the school environment, those involving viewpoint discrimination would seem to me to be the least justifiable. To quote Judge Rosen once again, “no matter how well-intentioned the stated objective, once schools get into the business of actively promoting one political or religious viewpoint over another, there is no end to the mischief that can be done in the name of good intentions.” Hansen, 293 F.Supp.2d at 803.
2. Tinker does contain an additional ground for banning student speech, namely where it is an “invasion of the rights of others.” 393 U.S. at 513, 89 S.Ct. 733. The school authorities suggest that Harper’s t-shirt violates California Education Code § 201(a), which provides that “[a]ll pupils have the right to participate fully in the educational process, free from discrimination and harassment.” Defendants cite
Harassment law might be reconcilable with the First Amendment, if it is limited to situations where the speech is so severe and pervasive as to be tantamount to conduct. See Saxe, 240 F.3d at 204-10. I need not consider whether section 201(a) is susceptible to such a narrowing construction because it is quite clear that Harper’s lone message was not sufficiently severe and pervasive to meet the standard articulated in Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Rather, it seems more like the “simple acts of teasing and name-calling,” described by the Supreme Court as non-actionable in Davis v. Monroe County Board of Education, 526 U.S. 629, 652, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). The “rights of others” language in Tinker can only refer to traditional rights, such as those against assault, defamation, invasion of privacy, extortion and blackmail, whose interplay with the First Amendment is well established. Surely, this language is not meant to give state legislatures the power to define the First Amendment rights of students out of existence by giving others the right not to hear that speech.
Nor can I join my colleagues in concluding that Harper’s t-shirt violated the rights of other students by disparaging their homosexual status. As I understand the opinion, my colleagues are saying that messages such as Harper’s are so offensive and demeaning that they interfere with the ability of homosexual students to partake of the educational environment. This is not a position briefed or argued by any of the parties, and no one introduced any evidence in support of, or opposition to, this proposition. The school authorities did not try to justify their actions on this ground; instead, they argued that they can ban any t-shirt derogatory to another individual, a proposition that the majority rejects. See maj. op. at 1182.
Such sua sponte lawmaking raises many problems, the first of which is that it finds no support in the record. What my colleagues say could be true, but the only support they provide are a few law review
The first article, written by physicians but apparently not peer-reviewed, makes a general statement to the effect that academic under-achievement and other problems of homosexual youths “are the probable consequence of violence and verbal and physical abuse at school.” Susanne M. Stronski Huwiler & Gary Remafedi, Adolescent Homosexuality, 33 Rev. Jur. U.I.P.R. 151, 164 (1999). The article does not explain what the authors mean by “verbal ... abuse,” so it’s not clear that Harper’s t-shirt is even covered by the article’s findings. Nor does the article explain the degree to which statements, as opposed to physical abuse, are responsible for the ill effects it discusses. The second article, written by a lawyer, not a healthcare professional, merely points to general problems suffered by gay and lesbian youths during their school years — problems that are reinforced by a variety of school practices and policies. See Thomas A. Mayes, Confronting Same-Sex, Student-to-Student Sexual Harassment: Recommendations for Educators and Policy Makers, 29 Fordham Urb. L.J. 641, 655-58 (2001). The other articles the majority cites also focus on physical abuse or threats, which the school can and should stamp out in a viewpoint neutral way. See Amy Lovell, “Other Students Always Used to Say, ‘Look At The Dykes’ ”: Protecting Students From Peer Sexual Orientation Harassment, 86 Cal. L.Rev. 617, 625-28 (1998); Courtney Weiner, Note, Sex Education: Recognizing Anti-Gay Harassment as Sex Discrimination Under Title VII and Title IX, 37 Colum. Hum. Rts. L.Rev. 189, 221-25 (2005); Kelli Kristine Armstrong, The Silent Minority Within a Minority: Focusing on the Needs of Gay Youth in Our Public Schools, 24 Golden Gate U.L.Rev. 67, 76-77 (1994). The majority finally resorts to press releases from advocacy groups — hardly a source “whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). What the materials the majority cites do establish is that the success of gay and lesbian teens in school is a complicated phenomenon, influenced by many factors. Even taking the sources on their own terms, none provides support for the notion that disparaging statements by other students, in the context of a political debate, materially interfere with the ability of homosexual students to profit from the school environment.
Nor do I fihd the proposition at the heart of the majority’s opinion — that homosexual students are severely harmed by any and all statements casting aspersions on their sexual orientation — so self-evident as to require no evidentiary support. We take judicial notice of facts that aren’t reasonably subject to dispute — gravity, the temperature at which ice melts, that commercial goods cost money, that time flows forward but not backward. But the fact that we can take judicial notice of certain indisputable facts does not mean that all facts are indisputable. Predicting the effect of certain kinds of statements on the learning ability of high school students is simply not the kind of “fact” that is judicially noticeable under any fair reading of Federal Rule of Evidence 201. Even the articles that the majority cites admit that the research on these effects is not unanimous. See, e.g., Lovell, 86 Cal. L.Rev. at 623-24. We have no business assuming without proof that the educational progress of homosexual students would be stunted by Harper’s statement.
Beyond the question of evidentiary support, I have considerable difficulty understanding the source and sweep of the novel doctrine the majority announces today.
Even the concept of minority status is not free from doubt. In defining what is a minority — and hence protected — do we look to the national community, the state, the locality or the school? In a school that has 60 percent black students and 40 percent white students, will the school be able to ban t-shirts with anti-black racist messages but not those with anti-white racist messages, or vice versa? Must a Salt Lake City high school prohibit or permit Big Love t-shirts?
And at what level of generality do we define a minority group? If the Pope speaks out against gay marriage, can gay students wear to school t-shirts saying “Catholics Are Bigots,” or will they be demeaning the core characteristic of a religious minority? And, are Catholics part of a monolithic Christian majority, or a minority sect that has endured centuries of discrimination in America? See maj. op. at 1181 n. 26.
Finally, I have considerable difficulty 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. As Judge Gilman said in his persuasive dissent in Boroff v. Van Wert City Board of Education, 220 F.3d 465 (6th Cir.2000), “school officials are not free to decide that only one side of a topic is open for discussion because the other side is too repugnant or demoralizing to listen to.” Id. at 474 (Gilman, J., dissenting) (citing Tinker, 393 U.S. at 508, 89 S.Ct. 733). I couldn’t have said it better.
The fundamental problem with the majority’s approach is that it has no anchor anywhere in the record or in the law. It is entirely a judicial creation, hatched to deal with the situation before us, but likely to cause innumerable problems in the future. Respectfully, I cannot go along.
The Harassment Policy
I believe we must also address Harper’s claim that he is entitled to an injunction against the school’s harassment policy on grounds of substantial overbreadth. Harper raised this claim in the district court, see Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Injunction at 14-16, but the district judge did not decide it in his otherwise thorough opinion. Harper again raises this claim in his brief before us, and the defendants respond in their brief, yet the majority also fails to decide it. The majority suggests in a footnote that it need not consider whether the school’s harassment policy is overbroad because it upholds the school’s banning of Harper’s t-shirt regardless of the policy. Maj. op. at 1175 n. 11. The policy, however, covers much more than the particular t-shirt Harper wore on the day in question. Given that the majority has effectively upheld the school’s banning of that shirt, it becomes even more important for us to rule on whether and how Harper may express his
1.The school’s harassment policy is contained in several documents. One of these is titled “Student Guide to Understanding and Avoiding Harassment” and contains a list of “actions [that] are prohibited for both students and staff.” One such prohibited item is “[n]egative comments or behavior based on race, ethnicity, sexual orientation, religion, or gender.” Another publication, addressed to parents, titled “Poway Unified School District Policies & Procedures for Parents Concerning Harassment of Students” contains the following admonition: “SPECIFIC HARASSMENT BEHAVIORS THAT ARE NOT TOLERATED IN THE PO-WAY UNIFIED SCHOOL DISTRICT INCLUDE,” which is followed by a number of items, among them “[n]egative comments, slurs, or behaviors based on race, ethnicity, sexual orientation, religion, or gender.”
A document titled “Poway Unified School District Administrative Procedure,” dated July 28, 1997, and subtitled “Hate Behavior,” contains the following definition:
A hate behavior is any act or attempted act to cause physical injury, emotional suffering, or property damage through intimidation, harassment, racial/ethnic slurs and bigoted epithets, vandalism, force or the threat of force, motivated all or in part by hostility to the victim’s real or perceived gender, race, ethnicity, religion, sexual orientation, or mental or physical challenges.
The same document contains a heading titled “Examples of Hate Behavior,” which is followed by a “list providing] examples of hate behavior to assist identifying where and when it may exist.” Among the items listed are the following:
2. The presence of symbols or words considered offensive to persons of a specific gender, race, ethnicity, religion, sexual orientation, or the mentally or physically challenged, such as graffiti, slurs, or painted swastikas.
3. Activities historically associated with threats to persons of a specific gender, race, ethnicity, religion, sexual orientation, or the mentally or physically challenged (e.g., burning crosses, wearing swastikas or white sheets, flying confederate flags,*1203 hanging effigies, defacing pink triangles).
6. Victim belief that the incident was motivated by bias against him/her as a member of a specific gender, race, ethnicity, religion, sexual orientation, or mentally or physically challenged group.
7. Perpetrator explanation/defense of incident involves exalting- own gender, race, ethnicity, religion, sexual orientation, or mental or physical status and/or includes statements demeaning victim group.
Finally, the lengthy Poway High School Student Handbook contains detailed regulations as to every aspect of student life. Among the many items listed is a dress code:
Dress: School clothing should be neat, clean, and appropriate for school activities and should follow the standards of common decency. The dress code will be enforced at all school-sponsored activities. Clothing that violates this standard is unacceptable, and the student in violation will be disciplined appropriately-
Examples of unacceptable dress include “[c]lothing and accessories (including backpacks) that promote or portray ... [violence or hate behavior including derogatory connotations directed toward sexual identity.”
Under the heading “Rules of Student Discipline,” there is a long list of prohibited acts, including “Sexual harassment” and “Hate behavior/Violence.” The list is both preceded and followed with the admonition that:
A student will be subject to disciplinary action for the designated acts that are related to school activity and attendance and which occur at any time, including but not limited to any of the following:
• The student is- on school grounds at a time when school is in session or a school-sponsored activity is in progress
• The student is going to or coming from school
• The student is on break or lunch periods whether on or off campus
• The student is going to, coming from or attending a school-sponsored activity.
Following this list, are a series of definitions, among them the following:
Discrimination: Discrimination is negative or unfair treatment toward an individual based on race, ethnicity, sexual orientation, religion or gender. It is against the rules for students to make nasty remarks that embarrass others or make them feel uncomfortable with actions or remarks that are sexual or racial in nature.
Harassment: Harassment is unwanted and unwelcome behavior from other students or staff members that interferes with another individual’s life. When it is sexual in nature, it is “sexual harassment”. When it is racial in nature, it is “hate motivated behavior” or sometimes a “hate crime”.
Hate Behavior: Negative behaviors that target members of a particular gender, race, ethnicity, religion, sexual orientation, or the mentally or physically challenged will not be tolerated. Such behaviors may include, but are not limited to:
1. Name calling, racial slurs or bigoted epithets.
2. The presence of symbols or words considered offensive to persons of a specific gender, race, ethnicity, religion, sexual orientation or the men- . tally or physically challenged, such*1204 as graffiti, slurs or painted swastikas.
3. Activities historically associated with threats to persons of a specific gender, race, ethnicity, religion, sexual orientation or the mentally or physically challenged (e.g., burning crosses, wearing swastikas or white sheets, flying confederate flags, hanging effigies, defacing pink triangles).
4. The posting or circulation of demeaning jokes or caricatures, based on negative stereotypes of a specific gender, race, ethnicity, nationality, religion, sexual orientation or mental or physical challenges.
5. The defacing, removal, dr destruction of posted materials, meeting places, memorials, etc. associated with specific gender, race, ethnic, religious, sexual orientation or mental or physical challenges.
6. Victim belief that the incident was motivated by bias against him/her as a member of a specific gender, racial, ethnic, religious, sexual orientation or mentally or physically challenged group.
7. Perpetrator explanation/defense of incident involves exalting own gender, race, ethnicity, religion, sexual orientation or mental or physical status and/or includes statements demeaning victim group.
8. The presence of organized hate group literature and/or posters or reference to an organized hate group.
While the parties provide little guidance about how to navigate these not entirely consistent documents, the most plausible way is to treat the two bulletins distributed to parents and students respectively as informal guidance intended to give a summary of the purpose and effect of the formal rules. The Administrative Procedure appears to be internal guidance from the school board to school district employees as to the proper way to interpret the formal rules. It is the Student Handbook — the lengthy and detailed set of regulations applicable to Poway High School' — that contains the binding rules, the violation of which may result in discipline. It is to these regulations, then, that we must look in determining the scope of the school’s anti-harassment policy; the remaining three documents can serve merely as guidance in interpreting the regulations.
2. The school’s harassment policy seems to prohibit any student speech, whether it be in the classroom, elsewhere on campus, in connection with any school activity, going to and returning from school and quite possibly at all other times and places, if it is derogatory, intended to be derogatory or believed to be derogatory of other students based on certain characteristics — -race, ethnicity, sexual orientation, religion, sex or disability. The prohibition extends to jokes or caricatures “based on negative stereotypes,” wearing of clothing that portrays “derogatory connotations directed toward sexual identity,” name-calling, anything that someone who is a member of one of the protected categories believes was directed against him on account of his status, and any statement by the speaker that exalts his own status in comparison to that of others. The Student Guide to Understanding and Avoiding Harassment seems to summarize the policy fairly accurately when it explains that “[njegative comments or behavior based on race, ethnicity, sexual orientation, religion, or gender” are prohibited. That is pretty much the position taken by Principal Fisher in his declaration: “It is my stance that any shirt which is worn on campus which speaks in a derogatory manner towards an individual or group of individuals is not
So interpreted, the school’s harassment policy is substantially overbroad, largely for the reasons articulated by the Third Circuit in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir.2001). The policy here, like that in Saxe, is not limited to speech that is vulgar, as defined by Fraser, or likely to cause substantial disruption under Tinker. Also, as in Saxe, the policy here is not limited to offensive speech that is severe and pervasive, so that the prohibition might be approved under our emerging harassment law jurisprudence. See id. at 217. Rather, the policy prohibits pretty much any speech that any student who is a member of one of the protected groups might take umbrage at.
The policy here is, in fact, much broader than that in Saxe in several important respects. First, the policy in Saxe seems to have been limited to school premises; the Saxe court, at least, treated it as such, noting that if the policy were to cover speech outside of school, it would raise additional constitutional problems. Id. at 216 & n. 11. By contrast, the policy here expressly applies outside school premises, extending to off-campus school activities and to travel to and from school. Moreover, the policy expressly states that it may apply elsewhere as well. The policy’s vast and uncertain geographic sweep makes it even more important that its substantive terms be narrowed down and precisely defined, consistent with the First Amendment.
Second, the policy in Saxe was found to be overbroad because it prohibited not merely speech that was actually disruptive, but also speech that had the purpose of disrupting, regardless of whether actual disruption occurred. Id. at 216. The policy here says relatively little about disruption, whether intended or actual. Rather, it prohibits much speech merely because of its “derogatory connotations” or because it “interferes with another individual’s life.” Assuming that a person of ordinary intelligence could even understand what these vacuous phrases mean, the policy here covers vastly more territory than permissible under Tinker.
Third, the policy in Saxe at least attempted to apply some sort of objective definition of what might be deemed offensive or intimidating. Id. at 215 (“[Hjarassment under the Policy ‘can include any unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual because of any of the characteristics described above.’ ”). By contrast, the policy here focuses expressly on what the individual who believes himself to be the target of the speech believes was the motivation of the speaker. Given the propensity of individuals, particularly adolescents, to view themselves as the center of the universe, this strikes me as a particularly broad and chilling aspect of the policy. See Sypniewski, 307 F.3d at 268-69 (“When policies focus broadly on listeners’ reactions, without providing a basis for limiting application to disruptive expression, they are likely to cover a substantial amount of protected speech.”). After all, who among us has never made what he thought was an innocuous remark only to learn that somebody else took it as maliciously pointed at them?
Fourth, the policy here, unlike that in Saxe, covers much of what lies at the core of political and symbolic speech, such as the presence or defacing of political symbols, hanging of effigies, flying of flags, etc. I do not dispute that a school can ban certain political symbols based on experience indicating that those symbols may lead to serious disruption or violence. See Sypniewski, 307 F.3d at 257-58; West, 206 F.3d at 1366. But the wholesale banning of the Stars and Bars, swastikas and the
Last but not least, the policy here (unlike that in Saxe) prohibits not only speech that denigrates others, but also any speech that the student seeks to justify by expressing pride in his own traits. We are taught to take pride in who we are; it is, in a sense, the American way. It seems particularly chilling to free expression to restrain speech that expresses pride in one’s own religion, ethnicity, sexual orientation, etc.
The problems posed by the policy here, not only for Harper but for many other students, are not theoretical or trivial. Assuming, as we must, that on the next Day of Silence Harper will not be allowed to wear a t-shirt expressing his interpretation of Romans 1:27, what exactly can he say or wear? Would a t-shirt quoting Romans 1:27
Nor is Harper alone. Consider those who participate in the Day of Silence. They, of course, believe they are doing so to promote tolerance and equality. But others — like Harper — might view it as an effort to exalt homosexuality and denigrate their own sexual orientation and religious beliefs. Relying on the same overbroad policy that the school used to ban Harper’s t-shirt, the school could, if it chose, easily ban the Day of Silence activities as demeaning the sexual orientation of straight students, or the religious beliefs of Christians like Harper.
All manner of other speech, from the innocuous to the laudable, could also be banned or punished under the school’s hate speech policy. May a student wear a Black Pride t-shirt, or does this denigrate white and Asian students? May a student
The types of speech that could be banned by the school authorities under the Poway High School hate policy are practically without limit. Any speech code that has at its heart avoiding offense to others gives anyone with a thin skin a heckler’s veto — something the Supreme Court has not approved in the past. See, e.g., Reno v. ACLU, 521 U.S. 844, 880, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); Forsyth County v. Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); Hustler Magazine v. Falwell, 485 U.S. 46, 55-56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). If the policy in Saxe was enjoined as over-broad, the policy here must be enjoined as well.
Conclusion
Because the only disputed issue before us is likelihood of success on the merits, I believe we have no choice but to reverse. I think it is highly likely that Harper will succeed on his t-shirt claim, and I have no doubt he will succeed as to his overbreadth challenge.
That having been said, I acknowledge that the school authorities here found themselves in a difficult situation and, in light of the circumstances, acted well. Harper was not disciplined for wearing his t-shirt; the school authorities merely tried to defuse what they saw as a volatile situation.
I also have sympathy for defendants’ position that students in school are a captive audience and should not be forced to endure speech that they find offensive and demeaning. There is surely something to the notion that a Jewish student might not be able to devote his full attention to school activities if the fellow in the seat next to him is wearing a t-shirt with the message “Hitler Had the Right Idea” in front and “Let’s Finish the Job!” on the back. This t-shirt may well interfere with the educational experience even if the two students never come to blows or even have words about it.
Perhaps school authorities should have greater latitude to control student speech than allowed them by Justice Fortas’s Vietnam-era opinion in Tinker. Perhaps Justice Black’s concerns, expressed in his Tinker dissent, see Tinker, 393 U.S. at 524-26, 89 S.Ct. 733 (Black, J., dissenting), should have been given more weight, see Karp, 477 F.2d at 174. Perhaps the narrow exceptions of Tinker should be broadened and multiplied. Perhaps Tinker should be overruled. But that is a job for the Supreme Court, not for us. See Boroff, 220 F.3d at 475 (Gilman, J., dissenting). While I sympathize with my colleagues’ effort to tinker with the law in this area, I am not convinced we have the authority to do so, which is why I must respectfully dissent.
. Reconciling Tinker and Fraser is no easy task. The Supreme Court majority in Fraser seems to have been influenced by the indecorousness of Fraser’s comments, which referred to a fellow student in terms that could be understood as a thinly-veiled phallic metaphor. See Fraser, 478 U.S. at 687, 106 S.Ct. 3159 (Brennan, J., concurring) (quoting Fraser’s comments). The curious thing, though, is that Fraser used no dirty words, so his speech could only have been offensive on account of the ideas he conveyed — the ideas embodied in his elaborate double-entendre. So construed, however, Fraser swallows up Tinker, by suggesting that some ideas can be excluded from the high school environment, even if they don't meet the Tinker standard.
Fraser might also be read as dealing with the situation involving a captive audience because the speech was given at a school sponsored assembly. However, attendance at the assembly was merely expected, not required, so students were perfectly free not to listen to the offensive speech. See Fraser, 478 U.S. at 677, 106 S.Ct. 3159. Then, again, how were students to know that they would hear a sexually offensive speech when they attended an assembly designed to debate the merits of candidates for student political office? Perhaps Fraser is best read as dealing with the situation where the school sponsors the activity in question and invites or encourages students to attend. By giving its imprimatur to the activity, the school is, in effect, assuring potential attendees that they will not be subjected to anything plainly offensive. So read, Fraser is merely a precursor to Hazelwood, and has no application at all to speech that has no school sponsorship at all — like talk in the corridors or messages on t-shirts worn by students.
. See, e.g., Ferris Bueller’s Day Off (Paramount Pictures 1986); J.K. Rowling, Harry Potter and the Half-Blood Prince (2005); Buffy the Vampire Slayer; Beverly Hills 90210; The O.C.; Saved by the Bell; Veronica Mars; and zillions more.
. This theme too has been mined by screenwriters ad nauseam. See, e.g., The Breakfast Club (Universal Pictures 1985); Clueless (Paramount Pictures 1995); 10 Things I Hate About You (Touchstone Pictures 1999); Mean Girls (Paramount Pictures 2004); Saved! (United Artists Pictures 2004).
. Giles, it will be noted, is swearing only that this is what he told Ron Harper; he is not swearing this is, in fact, what had happened the previous year. It's possible that Giles's statement to Harper was exaggerated or tailored to help defuse the situation. As Giles was not then under oath, a little stretching of the truth to jolly along an angry parent might have been perfectly okay. However, when this statement is imported into the litigation as hearsay, I'm not sure we are bound to believe anything more than this is what Giles told Harper.
. I must also mention the incongruity of prohibiting speech because others respond to it with violence. Assuming that someone in the previous year wore a t-shirt similar to Harper's, and was physically attacked “because someone took exception to a message concerning sexual orientation,” Giles decl. at 4, I'm not prepared to say that this alone would be sufficient to ban the shirt. Maybe the right response is to expel students who attack other students on school premises. But see Karp v. Becken, 477 F.2d 171, 173, 175-76 (9th Cir.1973) (upholding confiscation of protest banners based on a variety of factors, including threats of violence by other students).
. Assistant Principal Antrim in her declaration refers to the Straight-Pride Day the previous year as "unsanctioned,” suggesting a contrast with the Day of Silence. The school authorities have a close working relationship with the Gay-Straight Alliance (GSA), the campus club that sponsors the Day of Silence. After last year’s "tension” over the Day of Silence, the principal and the associated student body director worked with the GSA throughout the year to set "clearer guidelines” for this year's Day of Silence, and to “problem solve” tension among students about these issues. Antrim decl. at 2.
. The majority waxes eloquent about the right of schools "to teach civic responsibility and tolerance as part of its basic educational mission,” while suppressing other points of view. Maj. op. at 1185. But one man's civic responsibility is another man's thought control. For example, respect for the Constitution and support for the military are commonly regarded as civic virtues. But laws requiring schools receiving federal funding to hold a Constitution Day or to give military recruiters the names, addresses and phone numbers of their students have proved quite controversial. See Consolidated Appropriations Act, 2005, Pub.L. No. 108-447, § 111(b), 118 Stat. 2809, 3344 (2004); 20 U.S.C. § 7908; see also Rumsfeld v. Forum for Academic & Institutional Rights, Inc., - U.S. -, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). Having public schools, and those who fund them, define civic responsibility and then ban opposing points of view, as the majority seems willing to do, may be an invitation to group-think.
.Indeed, tolerance may not always be a virtue. Tolerating wicked conduct, bigotry or malicious gossip, for example, may not be in the least commendable. Then there is the question of whether we should tolerate intolerance, a question as imponderable as a M5-bius strip. Whether tolerance is a good or a bad thing may turn on what we think about the thing being tolerated.
. It is clear, moreover, that the California legislature did not intend to make inroads into the speech rights of students, since California Education Code § 48950(a) gives students greater speech rights than they have under federal law. While Harper waived reliance on this section as an independent source of authority for his appeal, see maj. op. at 1176 n. 13, we can certainly consider it in deciding how to construe other provisions of California law. Given the broad sweep of section 48950(a), it is simply not tenable to claim, as the majority seems to, that California Education Code sections 200 and 201 limit student speech under the "rights of others” prong of Tinker.
. The majority makes a tepid effort to rely on cases from other circuits, but those cases provide virtually no support. West did not purport to announce a generalized right to be left alone that includes the right not to hear viewpoints one finds uncomfortable. See West, 206 F.3d at 1366. The school board in West confronted a long history of racial strife and banned certain political symbols on both sides of the controversy. See id. at 1361-63. West was not a case about psychic damage but about physical security, and whatever stray comments the majority today has plucked out of West are more in the nature of loose language than a holding, or even dicta.
Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3d Cir.2002), on which the majority also relies, involved a school district with a history of racial strife. Even there, the court upheld the policy prohibiting racial "abuse and intimidat[ion]” only insofar as it amounted to bullying. Id. at 264. It emphasized, however, that mere name-calling is protected, and found the policy overbroad insofar as the statements in question merely generated ill will against a student on account of race: "But by itself, an idea's generating ill will is not a sufficient basis for suppressing its expression. ‘The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected.' ” Id. at 264-65 (quoting R.A.V., 505 U.S. at 414, 112 S.Ct. 2538). Finally, Saxe, which the majority dismisses in a brief footnote, see maj. op. at 1179-80 n. 21, cuts entirely the other way, for reasons I explain elsewhere, see pp. 1205 - 1206 infra.
. The majority equivocates a bit on this point. At one place it states that "[pjublic 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.'' Id. at 1178. The majority also does not "exclude ... the possibility that some verbal assaults on the core characteristics of majority high school students would merit application of the Tinker 'intrusion upon the rights of other students’ prong.” Id. at 1183 n.28. Read broadly, this would protect students from being disparaged based on any characteristic that two of my colleagues consider to be "core.” Presumably this could include race, nationality, sex, weight class, hair color and religion — but not political affiliation. See id. at 1182. Next, the majority notes that "schools may prohibit the wearing of T-shirts on high school campuses and in high school classes that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students and that may cause them significant injuiy.” Id. at 1182 (emphasis added). Later on, however, the opinion limits the new doctrine to core minority characteristics. See id. at 1182 n. 27. I read the majority's last formulation to be the one it intends, else my colleagues would pretty much have ripped the heart out of Tinker.
. The majority also seems to say that Harper limited his prayer for relief to the wearing of the shirt, but this is plainly not so. In his motion for a preliminary injunction, Harper moves the district court
for a preliminary injunction prohibiting Defendants from continuing their violation of the constitutional rights of Plaintiff Tyler Chase Harper. Unless such injunction issues, Chase will continue to suffer irreparable harm to his free speech right to speak out on matters at school in a nondisruptive manner, even if they are perceived by others as “negative” or "derogatory.”
Plaintiffs’ Notice of and Motion for Preliminary Injunction at 3.
In his Memorandum of Points and Authorities in Support of the Motion, Harper expressly challenges the school’s Harassment Policy as a whole on overbreadth grounds. See Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Preliminary Injunction 14-16.
Finally, the majority declines to address the overbreadth argument on the ground that the district judge didn't believe it was before him. See maj. op. at 1175 n. 11. But if Harper properly presented the issue — and I have no doubt he did — he is entitled to a ruling, even if we have to address the issue in the first instance. Were a district judge's failure to rule on an issue dispositive, district judges could buiy a party's claims simply by ignoring them.
. There is language in the imprecisely written opinion in Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir.1996), suggesting that a school could restrict “speech that could crush a child's sense of self-worth.” Id. at 1539-40. Muller involved elementary-school children and probably the best way to read this phrase is as adapting the Tinker-Fraser standard to younger children. Only Judge Rovner’s concurrence is entirely clear on this point. Id. at 1546-47 (Rovner, J., concurring).
. "And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which was meet.” Romans 1:27 (King James).
. Insofar as West v. Derby Unified School District No. 260 reaches a contrary conclusion on this issue — as I'm afraid it probably does, see 206 F.3d at 1367-68—I must respectfully disagree with my Tenth Circuit colleagues.
