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American Bar Association

ABA Section of Litigation
Children's Rights Litigation

Case Notes


Harper v. Poway Unified Sch. Dist.

--- F.3d --- (9th Cir. 2006)

In a 2-1 decision, a panel of the US Court of Appeals for the Ninth Circuit determined that speech protected outside a public school is not necessarily protected on school grounds. At issue in Harper v. Poway Unified School District, --- F.3d --- (9th Cir. 2006), was whether schools can prevent students from wearing clothes with messages thought to demean or impinge on the rights of others. Harper was a Sophomore at Poway High School when he twice wore at school a T-shirt bearing anti-gay statements and biblical messages written on masking tape. The second day Harper wore the shirt, a teacher sent him to the principal's office because other students in the class were distracted by the shirt and because of prior altercations at the school resulting from conflicting views about homosexuality. Harper refused to remove the shirt and was prevented by administrators from returning to class. In affirming the trial court’s decision not to enjoin enforcement of the school’s dress code pending resolution of the case, the two judge majority concluded that the school could prohibit Harper from wearing anti-gay messages because such messages impinge on the rights of other public school students who "have a right to be free of such attacks while on school campuses." "The school had a valid and lawful basis for restricting Harper's wearing of the T-shirt on the ground that his conduct was injurious to gay and lesbian students and interfered with their right to learn," the majority held. The majority and dissenting opinions are available through the Opinions link on the Ninth Circuit’s website.

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