Supreme Court orders dismissal of appeal in Poway T-shirt case

By: SCOTT MARSHALL - Staff Writer | Monday, March 5, 2007 11:20 PM PST ∞

NORTH COUNTY -- The U.S. Supreme Court on Monday ordered a federal appeals court to dismiss the appeal of part of a lawsuit a former Poway high school student filed against the Poway school district over the way school officials responded to a T-shirt he wore that called homosexuality "shameful."

An attorney for the student, Tyler Chase Harper, who goes by his middle name, said the decision from the nation's highest court was "very significant" because it eliminates an August 2006 ruling in the case from the 9th U.S. Circuit Court of Appeals and gives Harper and his family a "clean slate" as they appeal the main portion of the case.

The appeals court ruling, which applied to all courts in California and most of the western United States, had upheld a U.S. District Court judge's decision that allowed schools to stop students from wearing statements thought to demean or infringe on the rights of others.

An attorney for the school district described the issue decided Monday as "esoteric," said that the Supreme Court did not reverse the appeals court decision, and noted that Monday's action does not affect the "real case," which a federal judge in San Diego decided in the district's favor while the appeal to the Supreme Court was pending.

U.S. District Court Judge John Houston ruled in January that Chase Harper and his younger sister, Kelsie Harper, had failed to show that their constitutional rights were violated by Poway school district policies and by school officials. Houston dismissed Chase Harper from the lawsuit because he has graduated from Poway High School and granted the school district's request for judgment in its favor on every legal claim raised by Kelsie Harper, a Poway High junior.

Chase Harper was a sophomore at Poway High School in April 2004 when he wore the controversial shirt to school the day after a campus group held a "Day of Silence" to promote tolerance of homosexual, bisexual and transgendered students.

The front of the T-shirt bore the words "Homosexuality is shameful. Romans 1:27." The words "Be ashamed. Our school has embraced what God has condemned" appeared on the back of the shirt, a federal judge wrote.

Harper was sent to the principal's office after refusing to comply with a teacher's directions to remove the shirt. He was required to remain in a conference room at the office, where he did his homework until the end of the day because he would not remove the shirt, the August 2006 federal appeals court decision in the case stated.

Chase Harper alleged in the federal lawsuit that the school district and school officials violated his constitutional rights. Kelsie Harper was later added to the lawsuit, which alleged that she wanted to express an identical message through her speech or clothing, but was prevented from doing so because of school policies.

The district argued in court documents that school officials, mindful of tensions on campus after a "Day of Silence" in 2003, reasonably believed the T-shirt could "increase student tension" and cause a disruption among students. School officials also believed the shirt violated the rights of students and employees "to be free from harassment because of sexual orientation," the district argued in court documents.

In the original lawsuit, Chase Harper asked for a court order, known as a preliminary injunction, that would have prevented the district from stopping him from wearing the T-shirt while his lawsuit was pending. A federal judge denied that request, and a three-judge panel of a federal appeals court upheld that decision.

The Harpers asked the U.S. Supreme Court to review that ruling.

On Monday, the Supreme Court accepted the case for review, but declined to allow Kelsie Harper to join the request for the court order. The court split 8 to 1 in favor of vacating the August 2006 judgment from the 9th U.S. Circuit Court of Appeals and sending the case back to that appeals court with instructions to dismiss the appeal because it is moot.

Tim Chandler, an attorney with the Alliance Defense Fund who is representing the Harpers, said the Supreme Court's action takes the earlier "bad" appeals court ruling "off the books" and gives the Harpers a "clean slate" to go back to the appeals court to challenge Houston's January ruling that ended the lawsuit without a trial.

"We get essentially another bite at the apple with the 9th Circuit," Chandler said.

Jack Sleeth, the district's attorney, said Monday's Supreme Court decision might make it so someone else involved in a student free-speech case would not be able to use the earlier appeals court decision as legal precedent, but that the Supreme Court's action "wouldn't have any effect on our case at all."

"This is such an esoteric issue," Sleeth said. "This does nothing to us because we're going up to the 9th Circuit on the real case," Sleeth said.

Sleeth said the Supreme Court probably will be asked again to consider the case after the appeals court decides the pending appeal of Houston's January ruling.

-- Contact staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com.

On the Net:

http://www.supremecourtus.gov/orders/courtorders/030507pzor.pdf

http://www.alliancedefensefund.org/news/story.aspx?cid=4027