San Diego school administrators have engaged in viewpoint discrimination against a student, and now they are being sued for it.

Chase Harper, a sophomore in the Poway Unified School district, was offended when his school recently participated in the "Day of Silence," a national event sponsored by the Gay, Lesbian, and Straight Education Network. GLSEN describes Day of Silence as ìan annual, national student-led effort in which participants take a vow of silence to peacefully protest the discrimination and harassment faced by lesbian, gay, bisexual and transgender (LGBT) youth in schools.î About 300,000 school kids participate in the event each year. According to Harper and his lawyers, the school sponsored the event and administrators worked with the Gay-Straight Alliance, a student group, to coordinate it.

To protest his school's promotion of a viewpoint he, as a Christian, finds immoral, Harper commemorated the Day of Silence by coming to school in a homemade t-shirt protesting homosexuality. The next day, he did so again, wearing a shirt bearing the words ìBe Ashamedî and ìOur School Embraced What God Has Condemnedî on the front, and reading ìHomosexuality is Shamefulî and ìRomans 1:27î on the back. That's when the trouble began.

Harper's Christian friends warned him to lose the shirt, but he wouldn't. When school administrators found out about it, they attempted to "counsel" him into taking it off. A vice principal advised him that, in Harper's words, ìWhen I come to school, I leave my faith in the car, and you should leave your faith in the car when it might offend others.î The principal initially told Harper that the problem was that he wore a homemade t-shirt to school, but he quickly came clean about what the real issue was: "It wouldnít have mattered whether it was homemade or not," Harper reports him saying. "Itís your viewpoint that youíre expressing on your T-shirt that is offensive and inflammatory.î When Harper refused to remove the shirt, he was suspended.

The Alliance Defense Fund, a Christian legal group dedicated to defending religious liberty, filed suit in federal court on June 2, alleging that Harper's First Amendment rights were violated when he was suspended for wearing a shirt that expressed his view that homosexuality is a sin. The ADF contends that when the school told Harper he was not allowed to bring his religious beliefs about homosexuality to school with him, it violated his constitutionally protected right to religious freedom.

It looks like the school's defense is going to be that the shirt was harassing, that it created an unsafe environment, and that it therefore was not protected speech. While the school is not commenting on the case, it has supplied the media with copies of its policies on "hate behavior," free speech, and acceptable dress. These, in turn, look like they may not be constitutional. Jordan Budd, the legal director for the San Diego ACLU, explained it to the San Diego Union-Tribune:

Poway High's dress code, which is given to each student at the beginning of the year, states that unacceptable dress includes clothing that promotes or portrays "violence or hate behavior including derogatory connotations directed toward sexual identity."

The district's policy on freedom of speech and expression recognizes students' rights to express ideas and opinions through their speech, writing and clothing, but cautions against anything that would "incite students so as to create a clear and present danger .Ý.Ý. of unlawful acts .Ý.Ý. or of the substantial disruption (of school)."

Jordan Budd, legal director for the American Civil Liberties Union in San Diego, said Harper's case may have merit. "The school district is not empowered to censor based on what they deem inflammatory, it has to be based on a constitutional standard."

As long as Chase's T-shirt did not substantially disrupt activities, he had a right to express his political or religious beliefs, said Budd. He said the T-shirt could not be construed as harassment because harassment has to be directed against a particular individual.

It is not necessary to agree with Harper, or to like the way he chose to express his views, to see that what the school did was wrong. The irony of the case--that the school's attempt to promote mutual tolerance was really nothing of the kind, that its so-called promotion of tolerance was in fact an attempt to impose belief--is so rich that it hardly needs stating.

UPDATE: Alex Carnevale disagrees with me, citing as his reason, "Homosexuality is not a sin. Period." But I am not arguing that homosexuality is a sin (not being a religious person, I don't think in terms of sin to begin with; more to the point, I don't have the least problem with same-sex attraction). What I am arguing: that Harper has a right to believe that homosexuality is sinful, and that he also has a right to express that belief.

Yep, this will probably be a slam dunk. Can you say "viewpoint neutrality" boys and girls?

A part of me wishes I was in the kid's shoes. I'd relish the opportunity to sue the district into the ground.

The district's policy on freedom of speech and expression recognizes students' rights to express ideas and opinions through their speech, writing and clothing, but cautions against anything that would "incite students so as to create a clear and present danger . . . of unlawful acts . . . or of the substantial disruption (of school)."

Does anyone else think that the real disruption of school was that the school chose to force its viewpoint on the student body..?

Zach, also, it seems to me that having an administratation sanction and help coordinate a day of silence, which I presume would mean that students do not participate in or attend class, do not respond to questions, etc. so that they can express support for ANY political or social position, seems extraordinarily disruptive to the teaching process. Yet another instance of school administrtaors sacrificing the core function of a school (teaching - which should not be controversial) to support a political/social point of view that is, to say the least, controversial. Or lest they be thought of as "the enemy" because they would not help facilitate the day of silence.
Here we have an administration telling a student - how dare you not support our agenda - how dare you disagree with that agenda - and not only do we disagree with your expression - we will disallow that opposition because the manner in which you express your point of view is inflammatory (which literally translated means - we cannot trust the people you oppose to not react violently to your beliefs so we blame you for their potential inability to respond civilly to your point of view.)

Sigh.

What was the school thinking in officially sponsoring the Day of Silence? My schools shoved several unsavory and unwelcome viewpoints down my throat when I was a sprout, and the lesson I got out of that was Don't Shove, not Shove The Opposite.

Now that I think about, that *is* the deconstruction method -- reverse before dismantling. I prefer to cut straight to dismantling, myself.

I may be wrong, but I thought the First Amendment applies only in a qualified sense at the high school level and can be subordinated to pedagogical goals. Universities are different. I think that's all a matter of case law, but I could be wrong.

Mr. Harper's religion has little or nothing to do with the merits of his case. The problem here is one of free speech. Going tit for tat against the school for observing the Day of Silence gets us nowhere.....that act, in and of itself, has nothing to do with Mr. Harper's case. Sure, the act may have instigated his behavior, but the merits of the case will depend upon HIS actions and the schools subsequent response. If it is fair to deride the school for observing the day of silence, then one might argue that it is fair to deride the intolerent individuals that may have led the school and the student body to act as they did. The Mr. Harpers of the world will then find that they made the first move. As I said before, that gets us nowhere.

As for the Alliance Defense fund, religious freedom does not extend to the wearing of a t-shirt denouncing homosexuality--that act is a political act, not an act of religious faith. The question at hand here is one of free speech, not one of religious freedom. Granted, one might argue that being a good Christian may demand that one wear t-shirts denouncing all that is un-Christian and promoting all that is Christian..........but such an argument is laughable and would be so treated in a court of law.

They way the day of silence worked at my (independent) school was that students participating handed teachers a card or wore a small index card stating their participation. We got a note from the administration stating that we could call on students but they did not have to respond and don't force the issue but that it was at our discretion to count it against them for class participation that day. I also understood that this did not extend to foreign languages where speech is a daily requirement and that students participating in the day of silence did not do so in language classes though I could be wrong about that.

More importantly, high school students don't even have a semblance of free speech when in school. I researched this a lot when I was in high school in the 80s and the courts have gotten more restrictive since then. They have no right to privacy, no presumption of innocence, are not protected by probable cause, etc. etc..

Even public high schools are allowed to have fairly broad dress codes. It seems like this kid was out of it. Further Romans 1:27 states that gays and lesbians are paid "the fitting wage of such perversions" which, if we keep reading we find out in 1:32, is that they "deserve to die." Does that constitute a threat? Or at least a provocation? Enough to warrant asking the student to change his shirt.

"They have no right to privacy..."

What, under the "penumbras and emanations" of the 4th Amendment? It's true that the Vernonia case held something like this (not quite so broad, though); however, this may vary radically from one jurisdiction to the next, because 10 states have an express right of privacy in their state constitutions, and as I recall none expressly limit it to adults.

"no presumption of innocence, are not protected by probable cause, etc. etc."

Perhaps with respect to school disciplinary infractions, but not criminal prosecution: the 14th Amendment requires they be afforded Due Process, period, and the fact that someone's a student would be irrelevant to that.

First, although it should not be necessary to state, I do not share Harper's views - be they cast as political or religous. Quite the contrary in fact.
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1. A vice principal advised him that, in Harper's words, “When I come to school, I leave my faith in the car, and you should leave your faith in the car when it might offend others.”

1. Perhaps the student could have answered: "When I come to school, I leave my politics on the school bus, and you should should leave your politics in the car when it might offend others."
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That leads me to 2.
2."religious freedom does not extend to the wearing of a t-shirt denouncing homosexuality--that act is a political act, not an act of religious faith."
2. With all due respect, the first part of the statement lacks any support, legal, logical, or otherwise. It simply is not the case no matter how much one might wish it to be so. As to the second part of the statement, again, the question as to whether the act was political or religous is irrelevant. Our freedom is not limited to religous freedom. Statements like those complained of cannot be placed in boxes to suit our whim and it would be presumptuous for me or anyone else to classify them in such black and white terms without access to the heart and mind of the person making the statement. Of course, even if one construes it as a purely political 'act' (and calling it an 'act' is a stretch designed to make it fall more easily into student conduct guidelines), it was a political act set in place in response to a political act sanctioned and promoted by his high school. This silence thing sounds familiar by the way. Time to go back to the World According to Garp.
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3.one might argue that being a good Christian may demand that one wear t-shirts denouncing all that is un-Christian and promoting all that is Christian..........but such an argument is laughable and would be so treated in a court of law.
3. Actually, it wouldn't. It also happens to be irrelevant for the simple reason that one's beliefs, no matter how laughable to any of us here, does not strip the boy of his right to express those beliefs within the consitutionally permissive guidelines permitted by the courts with regard to conduct in high school. (Points made re. the relaxed constitutionals standards in schools are duly noted - and were noted by the ACLU as well - but that should not be read to imply that the boy has no rights at all particularly since I believe that speech rights are not quite constured the same as privacy rights, locker inspections, etc.
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4. By the way, I have no qualms at all with what any independent school does or does not do here. It is a private school and is their business as far as I am concerned.
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5. Further Romans 1:27 states that gays and lesbians are paid "the fitting wage of such perversions" which, if we keep reading we find out in 1:32, is that they "deserve to die." Does that constitute a threat?
5. Was anyone there except for Harper that had any idea what Romans 1:27 actually says. Anyone care to guess? Further, they would then need to be able to understand that Romans 1:32 (which was not referenced on the shirt)contained the deserve to die expression. Threat? I doubt it.
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6. If it is fair to deride the school for observing the day of silence, then one might argue that it is fair to deride the intolerent individuals
6. Agreed. We should all deride away, I have no problems with that.
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