Tyler Chase Harper, a minor, by v. Poway Unified School District

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 No. 04-57037 in their official capacity as Members
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; DOES 1
THROUGH 20, INCLUSIVE,
Defendants-Appellees. 
8535

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Filed July 31, 2006
Before: Stephen Reinhardt, Alex Kozinski, and
Sidney R. Thomas, Circuit Judges.
Order;
Concurrence by Judge Reinhardt;
Concurrence by Judge Gould;
Dissent by Judge O’Scannlain
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 consider-
ation. Fed. R. App. P. 35. The request for rehearing en banc
is denied.
REINHARDT, Circuit Judge, 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 stu-
dent’s dignity and self-worth. Similarly, the example Judge
Kozinski 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
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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 (1969).
Perhaps some of us are unaware of, or have forgotten, what
it is like to be young, belong to a small minority group, and
be subjected to verbal assaults and opprobrium while trying
to get an education in a public school, or perhaps some are
simply insensitive to the injury that public scorn and ridicule
can cause young minority students. Or maybe some simply
find it difficult to comprehend the extent of the injury attacks
such as Harper’s cause gay students. Whatever the reason for
the dissenters’ blindness, it is surely not beyond the authority
of local school boards to attempt to protect young minority
students against verbal persecution, and the exercise of that
authority by school boards is surely consistent with Tinker’s
protection of the right of individual students “to be secure and
to be let alone.” Tinker, 393 U.S. at 508.
GOULD, Circuit Judge, 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
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 environ-
ment, where administrators have a duty to protect students
from physical or psychological harms.
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O’SCANNLAIN, Circuit Judge, with whom KLEINFELD,
TALLMAN, BYBEE, and BEA, Circuit Judges, join, dissent-
ing from denial of rehearing en banc:
Judge Kozinski’s powerful dissent explains why the court
errs in permitting school administrators to engage in view-
point discrimination on the basis of a student’s newly promul-
gated 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
[i]n order for the State in the person of school offi-
cials to justify prohibition of a particular expression
of opinion, it must be able to show that its action was
caused by something more than a mere desire to
avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
509 (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). Har-
per’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 discom-
fort and unpleasantness that always accompany an unpopular
viewpoint.” 393 U.S. at 509.
Nevertheless, the panel majority stretches mightily to char-
acterize Harper’s message as a psychological attack that
might “cause young people to question their self-worth and
their rightful place in society.” Harper, 445 F.3d at 1178.
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According to the panel majority, a student’s “right to be let
alone” now includes a right to be free from “verbal assaults
on the basis of a core identifying characteristic such as race,
religion, or sexual orientation.” Id. But if displaying a dis-
tasteful opinion on a T-shirt qualifies as a psychological or
verbal assault, school administrators have virtually unfettered
discretion to ban any student speech they deem offensive or
intolerant.
In my view, this unprecedented—and unsupportable—
expansion of the right to be let alone as including a right not
to be offended has no basis in Tinker or its progeny, and we
neglect our duty by failing to reexamine the majority’s deci-
sion.
II
In reality, the panel majority’s decision amounts to
approval of blatant viewpoint discrimination. Harper wore his
T-shirt after students involved in the Gay-Straight Alliance
organized a “Day of Silence” in support of those of a different
sexual orientation. School administrators permitted the “Day
of Silence” but prohibited Harper from offering a different
view—a decision now upheld by this court.
Such action is directly contrary to the “prohibition on view-
point discrimination [that] serves . . . to bar the government
from skewing public debate.” Rosenberger v. Rector & Visi-
tors of Univ. of Va., 515 U.S. 819, 894 (1995). We normally
subject this type of viewpoint discrimination “to the most
exacting First Amendment scrutiny,” Saxe v. State Coll. Area
Sch. Dist., 240 F.3d 200, 207 (3d Cir. 2001), because it “sug-
gests an attempt to give one side of a debatable public ques-
tion an advantage in expressing its views,” First Nat. Bank of
Boston v. Bellotti, 435 U.S. 765, 785 (1978). The panel major-
ity failed to do so in this case.
Instead, under the panel majority’s decision, school admin-
istrators are now free to give one side of debatable public
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questions a free pass while muzzling voices raised in opposi-
tion. A respected First Amendment scholar notes that the
panel majority’s decision constitutes
a dangerous retreat from our tradition that the First
Amendment is viewpoint-neutral. It’s an opening to
a First Amendment limited by rights to be free from
offensive viewpoints. It’s a tool for suppression of
one side of public debates (about same-sex marriage,
about Islam, quite likely about illegal immigration,
and more) while the other side remains constitution-
ally protected and even encouraged by the govern-
ment.
Eugene Volokh, Sorry, Your Viewpoint Is Excluded from First
Amendment Protection, April 20, 2006, http://volokh.com/
posts/1145577196.shtml. No Supreme Court decision empow-
ers our public schools to engage in such censorship nor has
gone so far in favoring one viewpoint over another.
III
I regret that we have failed to avail ourselves of the oppor-
tunity to reconsider a decision that departs so sharply from
long-accepted First Amendment principles. I therefore
respectfully dissent from our order denying rehearing en banc.
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