Harper v. Poway Unified School Dist.

• Decision Date: 20 April 2006
• Docket Number: No. 04-57037.,04-57037.
• Parties: Tyler Chase HARPER, a minor, by and through his parents Ron and Cheryl Harper; Ron Harper; Cheryl Harper, Plaintiffs-Appellants, v. POWAY UNIFIED SCHOOL DISTRICT; Jeff Mangum; Linda Vanderveen; Penny Ranftyle; Steve McMillan; Andy Patapow, All Individually and in their official capacity as Members of the Board of the Poway Unified School District; Donald A. Phillips, Individually, and in his official capacity as Superintendent of the Poway Unified School District; Scott Fisher, Individually and in his official capacity as Principal of Poway High School; Lynell Antrim, Individually and in her official capacity as Assistant Principal of Poway High School; Ed Giles, Individually and in his official capacity as Vice Principal of Poway High School; David LeMaster, Individually and in his official capacity as Teacher of Poway High School; Does 1 Through 20, Inclusive, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

445 F.3d 1166

Tyler Chase HARPER, a minor, by and through his parents Ron and Cheryl Harper; Ron Harper; Cheryl Harper, Plaintiffs-Appellants, v. POWAY UNIFIED SCHOOL DISTRICT; Jeff Mangum; Linda Vanderveen; Penny Ranftyle; Steve McMillan; Andy Patapow, All Individually and in their official capacity as Members of the Board of the Poway Unified School District; Donald A. Phillips, Individually, and in his official capacity as Superintendent of the Poway Unified School District; Scott Fisher, Individually and in his official capacity as Principal of Poway High School; Lynell Antrim, Individually and in her official capacity as Assistant Principal of Poway High School; Ed Giles, Individually and in his official capacity as Vice Principal of Poway High School; David LeMaster, Individually and in his official capacity as Teacher of Poway High School; Does 1 Through 20, Inclusive, Defendants-Appellees.

No. 04-57037.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2005.

Filed April 20, 2006.

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Robert H. Tyler, Kevin Theriot; Alliance Defense Fund, Murrieta, CA, for the plaintiff-appellant.

Daniel Shinoff, Jack M. Sleeth, Jr., Paul V. Carelli, IV; Stutz, Artiano, Shinoff & Holtz, APC, San Diego, CA, for the defendants-appellees.

Appeal from the United States District Court for the Southern District of California; John A. Houston, District Judge, Presiding. D.C. No. CV-04-01103-JAH.

Before REINHARDT, KOZINSKI, and THOMAS, Circuit Judges.

REINHARDT, Circuit Judge.

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 read, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" handwritten on the front, and "HOMOSEXUALITY IS SHAMEFUL" handwritten on the back. He appeals the district court's order denying his motion for a preliminary injunction. Because he is not likely to succeed on the merits, we affirm the district court's order.

I. Factual Background¹

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."² During the days surrounding the 2003 "Day of Silence,"³ a series of incidents and altercations occurred on the school campus as a result of anti-homosexual comments that were made by students. One such confrontation required the Principal to separate students physically. According to David LeMaster, a teacher at Poway, several students were suspended as a result of these conflicts. Moreover, a week or so after the "Day of Silence," a group of heterosexual students informally organized a "Straight-Pride Day," during which they wore T-shirts which displayed derogatory remarks about homosexuals. According to Assistant Principal Lynell Antrim, some students were asked to remove the shirts and did so, while others "had an altercation and were suspended for their actions."

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.'"⁴ LeMaster, Harper's second period teacher, noticed Harper's shirt and observed "several students off-task talking about" the shirt. LeMaster, recalling the altercations that erupted as a result of "anti-homosexual speech" during the previous year's "Day of Silence," explained to Harper that he believed that the shirt was "inflammatory," that it violated the School's dress code, and that it "created a negative and hostile working environment for others." When Harper refused to remove his shirt and asked to speak to an administrator, LeMaster gave him a dress code violation card to take to the front office.

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.⁵ The Principal eventually decided that Harper could not wear his shirt on campus, a decision that, he asserts, was influenced by "the fact that during the previous year, there was tension on campus surrounding the Day of Silence between certain gay and straight students."⁶ Fisher proposed some alternatives to wearing the shirt, all of which Harper turned down. Harper asked two times to be suspended. Fisher "told him that [he] did not want him suspended from school, nor did [he] want him to have something in his disciplinary record because of a stance he felt strongly about." Instead, Fisher told Harper that he would be required to remain in the front office for the remainder of the school day.

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.⁷ The complaint alleges that Hubbert "came to interrogate" Harper to "determine if he was a dangerous student." Hubbert, however, asserts in his affidavit that he and Harper had a "casual conversation concerning the content of the shirt... the Bible and [the] scripture reference on the shirt," and that the conversation was conducted "simpl[y out of] curiosity... to understand the situation."

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,⁸ and state law claims, but denied the motion as to his three First Amendment claims: freedom of speech, free exercise of religion, and establishment of religion. The district court also granted the School's motion to dismiss Harper's...