Harper

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TYLER CHASE HARPER, a minor, by  and through his parents Ron and Cheryl Harper; RON HARPER; CHERYL HARPER; KESLIE K. HARPERE, a minor, by and through his parents Ron and 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 No. 04-57037 of the Board of the Poway Unified D.C. No. School District; DONALD A. PHILLIPS, CV-04-01103-JAH Individually, and in his official  Southern District capacity as Superintendent of the of California, Poway Unified School District; San Diego SCOTT FISHER, Individually and in his

ORDER

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;…

ORDER

A judge requested a vote on whether to rehear this matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. The request for rehearing en banc is denied.

concurring in the order denying the petition for rehearing en banc:

The dissenters still don’t get the message — or Tinker! Advising a young high school or grade school student while he is in class that he and other gays and lesbians are shameful, and that God disapproves of him, is not simply “unpleasant and offensive.” It strikes at the very core of the young student’s dignity and self-worth. Similarly, the example Judge Ko-zinski offers, a T-shirt bearing the message, “Hitler Had the Right Idea” on one side and “Let’s Finish the Job!” on the other, serves to intimidate and injure young Jewish students in the same way, as would T-shirts worn by groups of white students bearing the message “Hide Your Sisters — The Blacks Are Coming.” Under the dissent’s view, large numbers of majority students could wear such shirts to class on a daily basis, at least until the time minority members chose to fight back physically and disrupt the school’s normal educational process. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 513 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969).

Perhaps some of us are unaware of, or have forgotten, what it is like to be young, belong to a small minority group,…

concurring in the order denying the petition for rehearing en banc:

Hate speech, whether in the form of a burning cross, or in the form of a call for genocide, or in the form of a tee shirt *1054 misusing biblical text to hold gay students to scorn, need not under Supreme Court decisions be given the full protection of the First Amendment in the context of the school environment, where administrators have a duty to protect students from physical or psychological harms.

join, dissenting from denial of rehearing en banc:

Judge Kozinski’s powerful dissent explains why the court errs in permitting school administrators to engage in viewpoint discrimination on the basis of a student’s newly promulgated right to be free from certain offensive speech. I write only to emphasize why it was a mistake to fail to rehear this case en banc.

I

The Supreme Court has clearly stated that

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969). Tyler Harper wore a T-shirt to his high school with the words “Be Ashamed, Our School Embraced What God Has Condemned” on the front and “Homosexuality Is Shameful ‘Romans 1:27’” on the back. Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1171 (9th Cir.2006). Harper’s shirt was undoubtedly unpleasant and offensive to some students, but Tinker does not permit school administrators to ban speech on the basis of “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” 393 U.S. at 509 , 89 S.Ct. 733 .

Nevertheless, the panel majority stretches mightily to characterize Harper’s message as a psychological attack that might…