Harper

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. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Robert H. Tyler, Kevin Theriot; Alliance Defense Fund, Murrieta, CA, for the plaintiff-appellant. Daniel Shinoff,…

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 *1171 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 Background

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…

dissenting:

While I find this a difficult and troubling case, I can agree with neither the majority’s rationale nor its conclusion. On the record to date, the school authorities have offered no lawful justification for banning Harper’s t-shirt and the district court should therefore have enjoined them from doing so pending the outcome of this case. Harper, moreover, raised a valid facial challenge to the school’s harassment policy, and the district court should have enjoined the policy as well.

The T-shirt

As the majority correctly notes, school speech falls into three categories, each governed by its own standard. The first category involves school-sponsored speech, which is governed by Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 270-71 , 108 S.Ct. 562 , 98 L.Ed.2d 592 (1988). The second involves vulgar or plainly offensive speech, and it is governed by Bethel School District No. 403 v. Fraser, 478 *1193 U.S. 675, 683-85 , 106 S.Ct. 3159 , 92 L.Ed.2d 549 (1986). All other speech falls into the third category and is governed by Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 511-14 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969).

Harper’s t-shirt was…