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,
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 Disrict;
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
D.C. No. CV-04-01103-JAH
OPINION

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2
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted June 6, 2005
Pasadena, California
Filed April 20, 2006
Before: REINHARDT, KOZINSKI, and THOMAS, Circuit Judges.
REINHARDT, Circuit Judge:
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 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.

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1These background facts are based on the limited record before us which
includes five declarations by school officials, and declarations from Harper, his
father, Ron Harper, and a fellow student, Joel Rhine.
2In his complaint, Harper alleges that he believes “the true purpose” of the
“Day of Silence” was “to endorse, promote and encourage homosexual activity.”
3On the “Day of Silence,” participating students wore duct tape over their
mouths to symbolize the silencing effect of intolerance upon gays and lesbians;
these students would not speak in class except through a designated representative.
Some students wore black T-shirts that said “National Day of Silence” and
contained a purple square with a yellow equal sign in the middle. The Gay-
Straight Alliance, with the permission of the School, also put up several posters
promoting awareness of harassment on the basis of sexual orientation.
3
I. Factual Background1
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 students. One such confrontation required the Principal to separate
students physically. According to David LeMaster, a teacher at Poway, several
students were suspended as a result of these conflicts. Moreover, a week or so
after the “Day of Silence,” a group of heterosexual students informally organized a

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4A copy of a photograph of the T-shirt is attached as Exhibit A.
4
“Straight-Pride Day,” during which they wore T-shirts which displayed derogatory
remarks about homosexuals. According to Assistant Principal Lynell Antrim,
some students were asked to remove the shirts and did so, while others “had an
altercation and were suspended for their actions.”
Because of these conflicts in 2003, when the Gay-Straight Alliance sought to
hold another “Day of Silence” in 2004, the School required the organization to
consult with the Principal to “problem solve” and find ways to reduce tensions and
potential altercations. On April 21, 2004, the date of the 2004 “Day of Silence,”
appellant Tyler Chase Harper wore a T-shirt to school on which “I WILL NOT
ACCEPT WHAT GOD HAS CONDEMNED,” was handwritten on the front and
“HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27’” was handwritten on the
back. There is no evidence in the record that any school staff saw Harper’s T-shirt
on that day.
The next day, April 22, 2004, Harper wore the same T-shirt to school, except
that the front of the shirt read “BE ASHAMED, OUR SCHOOL EMBRACED
WHAT GOD HAS CONDEMNED,” while the back retained the same message as
before, “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27.’”4 LeMaster,
Harper’s second period teacher, noticed Harper’s shirt and observed “several

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5
students off-task talking about” the shirt. LeMaster, recalling the altercations that
erupted as a result of “anti-homosexual speech” during the previous year’s “Day of
Silence,” explained to Harper that he believed that the shirt was “inflammatory,”
that it violated the School’s dress code, and that it “created a negative and hostile
working environment for others.” When Harper refused to remove his shirt and
asked to speak to an administrator, LeMaster gave him a dress code violation card
to take to the front office.
When Harper arrived at the front office, he met Assistant Principal Antrim.
She told Harper that the “Day of Silence” was “not about the school promoting
homosexuality but rather it was a student activity trying to raise other students’
awareness regarding tolerance in their judgement [sic] of others.” Antrim believed
that Harper’s shirt “was inflammatory under the circumstances and could cause
disruption in the educational setting.” Like LeMaster, she also recalled the
altercations that had arisen as a result of anti-homosexual speech one year prior.
According to her affidavit, she “discussed [with Harper] ways that he and students
of his faith could bring a positive light onto this issue without the condemnation
that he displayed on his shirt.” Harper was informed that if he removed the shirt he
could return to class.

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5In his affidavit, Harper characterized these conversations with other
students as “peaceful discussions wherein differing viewpoints were
communicated.”
6We note that conflicts over homosexuality at Poway High School have not
been limited to the incidents surrounding a “Day of Silence.” Two former students
recently won a suit against the School for failing to protect them from students who
harassed them because they are gay. See Dana Littlefield, Two Gay Students Were
Harassed, Jury Finds, San Diego Union-Trib., June 9, 2005, at B2. During the
trial, one of the students testified that Poway “students repeatedly called him
names, shoved him in the hallways, threw food at him and spit on him,” and “that
he heard other students make disparaging remarks about gays and lesbians on a
nearly daily basis.” Id.
6
When Harper again refused to remove his shirt, the Principal, Scott Fisher,
spoke with him, explaining his concern that the shirt was “inflammatory” and that
it was the School’s “intent to avoid physical conflict on campus.” Fisher also
explained to Harper that it was not healthy for students to be addressed in such a
derogatory manner. According to Fisher, Harper informed him that he had already
been “confronted by a group of students on campus” and was “involved in a tense
verbal conversation” earlier that morning. 5 The Principal eventually decided that
Harper could not wear his shirt on campus, a decision that, he asserts, was
influenced by “the fact that during the previous year, there was tension on campus
surrounding the Day of Silence between certain gay and straight students.” 6 Fisher
proposed some alternatives to wearing the shirt, all of which Harper turned down.
Harper asked two times to be suspended. Fisher “told him that [he] did not want

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7Hubbert, who is a detective with the San Diego County Sheriff, was on
campus that day because someone, purporting to be a parent, had called the School
that morning complaining about the School’s “condoning” the “Day of Silence”
and stated that “he and several other parents had ‘had it’ and ‘would be doing
something about it.’” Concerned about safety, Principal Fisher had requested
Hubbert’s presence on campus on that day.
7
him suspended from school, nor did [he] want him to have something in his
disciplinary record because of a stance he felt strongly about.” Instead, Fisher told
Harper that he would be required to remain in the front office for the remainder of
the school day.
Harper spent the rest of the day in the school conference room doing his
homework. At some point during that day, Deputy Sheriff Norman Hubbert, who
served as the school resource officer for Poway High, came in to speak with
Harper.7 The complaint alleges that Hubbert “came to interrogate” Harper to
“determine if he was a dangerous student.” Hubbert, however, asserts in his
affidavit that he and Harper had a “casual conversation concerning the content of
the shirt . . . the Bible and [the] scripture reference on the shirt,” and that the
conversation was conducted “simpl[y out of] curiosity . . . to understand the
situation.”
Toward the end of the school day, Assistant Principal Ed Giles spoke with
Harper. Giles had discovered earlier in the day that Harper attended the same

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8
church that he had previously attended, and that he “knew [Harper’s] father
personally and had attended Biblical studies that [Harper’s] father led on Tuesday
nights.” According to Giles, he went to speak with Harper “out of respect to
[Harper] and his family” and “to make sure he was alright.” Giles told Harper that
he understood “where he was coming from” but wished that he could “express
himself in a more positive way.” Giles also said that he shared the same Christian
faith as Harper, but that as a school employee, he had to watch how he expressed
his beliefs and that when he came to work, he had to “leave his faith in [the] car.”
Giles then asked Harper to “consider other alternatives that would be more positive
and non-confrontational,” including sponsoring activities through the campus Bible
Club.
After his conversation with Giles, Harper remained in the office for the last
period of the day, after which he was instructed to proceed directly off campus.
Harper was not suspended, no disciplinary record was placed in his file, and he
received full attendance credit for the day.
II. Procedural History
On June 2, 2004, Harper filed a lawsuit in district court against Poway
Unified School District and certain named individuals in their individual and
official capacities. Harper alleged five federal causes of action – violations of his

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8The district court dismissed with prejudice only Harper’s due process
challenge.
9We note that on November 17, 2004, thirteen days after the district court
rendered its decision and two days prior to filing his Notice of Appeal with this
court, Harper filed a First Amended Verified Complaint adding his sister, Kelsie,
(continued...)
9
right to free speech, his right to free exercise of religion, the Establishment Clause,
the Equal Protection Clause, and the Due Process Clause – and one state law claim
based on California Civil Code § 52.1, which creates a private cause of action for
the violation of individual federal and state constitutional rights. On June 22,
2004, the School filed a motion to dismiss, and on July 12, 2004, Harper filed a
motion for a preliminary injunction seeking to enjoin the school from “continuing
[its] violation of the constitutional rights of Plaintiff Tyler Chase Harper.” On
November 4, 2004, the district court granted the School’s motion to dismiss as to
Harper’s equal protection, due process, 8 and state law claims, but denied the
motion as to his three First Amendment claims: freedom of speech, free exercise of
religion, and establishment of religion. The district court also granted the School’s
motion to dismiss Harper’s damages claims against Poway Unified School District
and the individual defendants on the ground of qualified immunity. Finally, the
district court denied Harper’s motion for a preliminary injunction. Harper then
filed an interlocutory appeal from the order denying the latter motion.9

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9(...continued)
who is a freshman at Poway High School, as a plaintiff. On February 23, 2005, the
district court granted in part and denied in part the School’s motion to dismiss the
First Amended Complaint. Because the amended complaint is not before this court
on appeal, we limit our review to Harper.
10
III. Jurisdiction
We have jurisdiction to review the district court’s denial of the preliminary
injunction motion under 28 U.S.C. § 1292(a)(1).
IV. Standard and Scope of Review
For a district court to grant a preliminary injunction, the moving party must
demonstrate either “(1) a combination of probable success on the merits and the
possibility of irreparable harm; or (2) that serious questions are raised and the
balance of hardships tips in its favor.” A & M Records, Inc. v. Napster, Inc., 239
F.3d 1004, 1013 (9th Cir. 2001). “Each of these two formulations requires an
examination of both the potential merits of the asserted claims and the harm or
hardships faced by the parties.” Sammartano v. First Judicial Dist. Court, 303
F.3d 959, 965 (9th Cir. 2002). “These two alternatives represent extremes of a
single continuum, rather than two separate tests.” Sun Microsystems, Inc. v.
Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. 1999) (citation and internal
quotation marks omitted). Accordingly, “the greater the relative hardship to the

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10The district court concluded that “balancing the needs of the School to
keep all their students safe coupled with the foreseeable vision that other students
may feel free to exhibit these types of expressions that would interfere with the
work of the school and violate the rights of others against [Harper’s] interests does
not tip the scales sharply in [Harper’s] favor.” As our analysis of Tinker below
illustrates, not only does the balance of hardships not tip sharply in Harper’s favor,
but it does not tip in his favor at all.
11
moving party, the less probability of success must be shown.” Id. (citation and
internal quotation marks omitted).
The district court concluded, and the School concedes on appeal, that
because Harper’s First Amendment claims survived the motion to dismiss, Harper
made the necessary showing of irreparable harm. See Sammartano, 303 F.3d at
973 (internal quotation marks omitted) (“[A] party seeking preliminary injunctive
relief in a First Amendment context can establish irreparable injury sufficient to
merit the grant of relief by demonstrating the existence of a colorable First
Amendment claim.”). The balance of hardships does not, however, tip in his
favor.10 Therefore, the question is whether Harper demonstrated a likelihood of
success on the merits as to any or all of his three First Amendment claims.
We review a district court’s grant or denial of a preliminary injunction for
abuse of discretion. A & M Records, Inc., 239 F.3d at 1013. We will reverse “only
where the district court abused its discretion or based its decision on an erroneous
legal standard or on clearly erroneous findings of fact.” El Pollo Loco, Inc. v.

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12
Hashim, 316 F.3d 1032, 1038 (9th Cir. 2003) (citation and internal quotation
marks omitted). Where, as here, the appellant does not dispute the district court’s
factual findings, we are required to determine “whether the court employed the
appropriate legal standards governing the issuance of a preliminary injunction and
whether the district court correctly apprehended the law with respect to the
underlying issues in the case.” A & M Records, Inc., 239 F.3d at 1013 (internal
quotation and citation omitted). The district court’s interpretation of the
underlying legal principles is subject to de novo review. Id. We may affirm the
district court’s order “on any ground supported by the record even if it differs from
the rationale of the district court.” Nat’l Wildlife Fed’n v. United States Army
Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir. 2004).
V. Analysis
1. Freedom of Speech Claim
The district court concluded that Harper failed to demonstrate a likelihood of
success on the merits of his claim that the School violated his First Amendment
right to free speech because, under Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
the evidence in the record was sufficient to permit the school officials to
“reasonably . . . forecast substantial disruption of or material interference with
school activities.” 393 U.S. 503, 514 (1969). Harper contends that the district

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11We need not rule upon the validity of the School’s dress code or other anti-
harassment policies in order to determine whether the district court abused its
discretion in denying the preliminary injunction. Harper’s motion for a
preliminary injunction sought only to enjoin school officials “from continuing their
violation of the constitutional rights of Plaintiff Tyler Chase Harper.” The only
violation alleged was that Harper was precluded from wearing his T-shirt with its
demeaning message while at school. The motion did not seek to enjoin the
enforcement of the School’s dress code or any other school policies against any
and all students, but sought only to stop the violation of Harper’s purported
constitutional right to wear his T-shirt. Our affirmance of the district court order
does not depend upon the existence of a valid school policy or code. Under Tinker,
the School is permitted to prohibit Harper’s conduct, with or without a valid anti-
harassment or other policy, if it can demonstrate that the restriction was necessary
to prevent either the violation of the rights of other students or substantial
disruption of school activities. The record is clear that even though Harper’s
teacher and Vice Principal Antrim stated that the T-shirt violated the dress code,
the school officials made plain to Harper that the reason he could not wear the T-
shirt was because of its effect upon other students and its disruptive effect upon the
educational environment, rather than because it was prohibited by a dress code.
The district judge apparently concluded that the validity of the School’s anti-
harassment policies was not before him, or that it was not necessary to decide that
question, and we cannot say that his determination was unreasonable. Finally, we
(continued...)
13
court erred in rejecting his free speech claim on three grounds: (1) his speech is
protected under the Supreme Court’s holdings in Tinker and Bethel Sch. Dist. v.
Fraser, 478 U.S. 675 (1986); (2) the School’s actions and policies amount to
viewpoint discrimination under Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 829 (1995); and (3) the School’s dress code and speech policies are
overbroad under Bd. of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc.,
482 U.S. 569, 574 (1987). 11 We affirm the district court’s denial of the requested

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11(...continued)
would prefer not to make even a preliminary judgment as to the constitutionality of
the School’s dress code or anti-harassment policies without the district court first
having considered the question. Of course, following remand, the district court
may do so at the appropriate time or upon the appropriate motion. In contrast, our
dissenting colleague would have us engage on appeal in a sweeping examination
ab initio of the validity of a complicated series of policies – an examination that
would cause us to discuss prematurely a number of controversial constitutional
issues. See dis. op. at 22-36. We see no need for such an exercise of our
jurisdiction on this appeal.
14
preliminary injunction. Although we, like the district court, rely on Tinker, we rely
on a different provision – that schools may prohibit speech that “intrudes upon . . .
the rights of other students.” Tinker, 393 U.S. at 508.
a. Student Speech Under Tinker
Public schools are places where impressionable young persons spend much
of their time while growing up. They do so in order to receive what society hopes
will be a fair and full education – an education without which they will almost
certainly fail in later life, likely sooner rather than later. See Brown v. Bd. of Educ.,
347 U.S. 483, 493 (1954) (“[I]t is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of an education.”). The
public school, with its free education, is the key to our democracy. See id. (stating
that public education “is the very foundation of good citizenship”). Almost all

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12As of the fall of 2005, approximately eighty-eight percent of elementary
and secondary students in the United States attended public schools. See DIGEST
OF EDUCATION S TATISTICS, 2004, N AT ’ L CTR. FOR EDUC. S TATISTICS (2004),
available at http://nces.ed.gov/programs/digest/d04/. Most of the rest attended
religious schools. See S TEPHEN P. BROUGHMAN & KATHLEEN W. P UGH,
CHARACTERISTICS OF P RIVATE S CHOOLS IN THE UNITED S TATES: RESULTS F ROM
THE 2001–2002 P RIVATE S CHOOL UNIVERSE S URVEY (U.S. Department of
Education, National Center for Education Statistics) (2005).
15
young Americans attend public schools.12 During the time they do – from first
grade through twelfth – students are discovering what and who they are. Often,
they are insecure. Generally, they are vulnerable to cruel, inhuman, and prejudiced
treatment by others.
The courts have construed the First Amendment as applied to public schools
in a manner that attempts to strike a balance between the free speech rights of
students and the special need to maintain a safe, secure and effective learning
environment. See, e.g., Tinker, 393 U.S. at 507 (balancing the need for
“scrupulous protection of Constitutional freedoms of the individual” against the
need of schools to perform their proper educational function). This court has
expressly recognized the need for such balance: “States have a compelling interest
in their educational system, and a balance must be met between the First
Amendment rights of students and preservation of the educational process.”
LaVine v. Blaine Sch. Dist., 257 F.3d 981, 988 (9th Cir. 2001). Although public

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13Although Harper correctly points out that California law provides greater
protection for student speech than federal law, see Cal. Educ. Code § 48950(a), he
did not raise a state law claim in his preliminary injunction motion before the
district court. Nor did he question, as he does in his brief to us, the
constitutionality of the correlative provisions of the California Education Code that
provide greater protection than federal law against harassment of students on the
basis of sexual orientation. See Cal. Educ. Code §§ 200, 201, 220. Accordingly,
we do not rely on or resolve any state law questions here.
14Because we decide Harper’s free speech claim on the basis of Tinker, we
(continued...)
16
school students do not “shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate,” Tinker, 393 U.S. at 506, the Supreme Court
has declared that “the First Amendment rights of students in public schools are not
automatically coextensive with the rights of adults in other settings, and must be
applied in light of the special characteristics of the school environment.” 13
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (internal citation and
quotation marks omitted). Thus, while Harper’s shirt embodies the very sort of
political speech that would be afforded First Amendment protection outside of the
public school setting, his rights in the case before us must be determined “in light
of [those] special characteristics.” Tinker, 393 U.S. at 506.
This court has identified “three distinct areas of student speech,” each of
which is governed by different Supreme Court precedent: (1) vulgar, lewd,
obscene, and plainly offensive speech which is governed by Fraser,14 (2) school-

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14(...continued)
need not consider whether his speech was “plainly offensive” under Fraser.
15Neither party here claims that Harper’s speech is “school-sponsored” and
thus governed by Hazelwood.
16In Tinker, the Supreme Court held that a public school could not ban
students from wearing black armbands protesting the Vietnam war where the
“silent, passive expression of opinion [was] unaccompanied by any disorder or
disturbance,” and there was no evidence that the display “colli[ded] with the rights
of other students to be secure and to be let alone.” 393 U.S. at 508.
17
sponsored speech which is governed by Hazelwood,15 and (3) all other speech
which is governed by Tinker. Chandler v. McMinnville Sch. Dist., 978 F.2d 524,
529 (9th Cir. 1992) (internal citations omitted).
In Tinker, the Supreme Court confirmed a student’s right to free speech in
public schools. 16 In balancing that right against the state interest in maintaining an
ordered and effective public education system, however, the Court declared that a
student’s speech rights could be curtailed under two circumstances. First, a school
may regulate student speech that would “impinge upon the rights of other
students.” Tinker, 393 U.S. at 509. Second, a school may prohibit student speech
that would result in “substantial disruption of or material interference with school
activities.” Id. at 514. Because, as we explain below, the School’s prohibition of
the wearing of the demeaning T-shirt is constitutionally permissible under the first
of the Tinker prongs, we conclude that the district court did not abuse its discretion

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17The first part of our colleague’s dissent is devoted to a discussion of
whether there was sufficient evidence that the wearing of Harper’s T-shirt caused
substantial disruption, the Tinker prong on which the district court relied but which
is not relevant to our holding. See dis. op. at 3-9. The last part of the dissent also
deals with a subject we need not and do not address: what the dissent terms the
School’s “harassment policy.” Id. at 22-36; see also supra n. 11. Oddly, the
dissent spends only a relatively minor part of its discussion on the determinative
issue here, the impermissible intrusion on the rights of gay and lesbian students.
Id. at 13-22. Even more oddly, in its Conclusion the dissent suggests that speech
that is fundamentally offensive to minority students may be constitutionally limited
and quarrels only with whether such a limitation is consistent with the wording of
Tinker. Id. at 36-37. It also suggests that the Supreme Court might properly
modify Tinker and validate our holding. Id. at 37. We disagree that any
modification of Tinker is required or desirable. All that is necessary is a fair
reading of its plain language, as we explain in the following section.
18
in finding that Harper failed to demonstrate a likelihood of success on the merits of
his free speech claim. 17
i. The Rights of Other Students
In Tinker, the Supreme Court held that public schools may restrict student
speech which “intrudes upon . . . the rights of other students” or “colli[des] with
the rights of other students to be secure and to be let alone.” 393 U.S. at 508.
Harper argues that Tinker’s reference to the “rights of other students” should be
construed narrowly to involve only circumstances in which a student’s right to be
free from direct physical confrontation is infringed. Drawing on the Fifth Circuit’s
opinion in Blackwell v. Issaquena County Bd. of Ed., 363 F.2d 749, 751 (5th Cir.
1966), which the Supreme Court cited in Tinker, Harper contends that because the

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19
speakers in Blackwell “accosted other students by pinning the buttons on them
even though they did not ask for one,” a student must be physically accosted in
order to have his rights infringed.
Notwithstanding the facts of Blackwell, the law does not support Harper’s
argument. This court has explained that vulgar, lewd, obscene, indecent, and
plainly offensive speech “by definition, may well ‘impinge[] upon the rights of
other students,’” even if the speaker does not directly accost individual students
with his remarks. Chandler, 978 F.2d at 529 (quoting Tinker, 393 U.S. at 509). So
too may other speech capable of causing psychological injury. The Tenth Circuit
has held that the “display of the Confederate flag might . . . interfere with the rights
of other students to be secure and let alone,” even though there was no indication
that any student was physically accosted with the flag, aside from its general
display. West v. Derby Unified Sch. Dist., 206 F.3d 1358, 1366 (10th Cir. 2000).
While “[t]he precise scope of Tinker’s ‘interference with the rights of others’
language is unclear,” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 217 (3rd
Cir. 2001), we unequivocally reject Harper’s overly narrow reading of the phrase.
We conclude that Harper’s wearing of his T-shirt “colli[des] with the rights
of other students” in the most fundamental way. Tinker, 393 U.S. at 508. Public
school students who may be injured by verbal assaults on the basis of a core

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18There is nothing in Tinker that remotely supports the dissent’s contention
that the rights to “be secure and to be let alone” are limited to rights such as those
that protect against “assault, defamation, invasion of privacy, extortion and
blackmail.” Dis. op. at 14. Security and privacy entail far more than freedom from
those torts. Nor does the dissent offer any reason why the rights to security and
privacy do not include freedom from verbal assaults that cause psychological
injury to young people.
20
identifying characteristic such as race, religion, or sexual orientation, have a right
to be free from such attacks while on school campuses. As Tinker clearly states,
students have the right to “be secure and to be let alone.” Id. Being secure
involves not only freedom from physical assaults but from psychological attacks
that cause young people to question their self-worth and their rightful place in
society.18 The “right to be let alone” has been recognized by the Supreme Court, of
course, as “‘the most comprehensive of rights and the right most valued by
civilized men.’” Hill v. Colorado, 530 U.S. 703, 716-17 (2000) (quoting Olmstead
v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)). Indeed, the
“recognizable privacy interest in avoiding unwanted communication” is perhaps
most important “when persons are ‘powerless to avoid’ it.” Id. at 716 (quoting
Cohen v. California, 403 U.S. 15, 21-22 (1971)). Because minors are subject to
mandatory attendance requirements, the Court has emphasized “the obvious
concern on the part of parents, and school authorities acting in loco parentis, to
protect children – especially in a captive audience . . . .” Fraser, 478 U.S. at 684.

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19California law provides that “[a]ll pupils have the right to participate fully
in the educational process, free from discrimination and harassment.” Cal. Educ.
Code § 201(a). The dissent expostulates on the meaning of the term “harassment”
and speculates as to whether the California statute may be contrary to the First
Amendment, all of which is irrelevant here because we do not rely on the statute in
reaching our decision. See dis. op. at 13-15.
21
Although name-calling is ordinarily protected outside the school context,
“[s]tudents cannot hide behind the First Amendment to protect their ‘right’ to
abuse and intimidate other students at school.” Sypniewski v. Warren Hills Reg’l
Bd. of Educ., 307 F.3d 243, 264 (3rd Cir. 2002).
Speech that attacks high school students who are members of minority
groups that have historically been oppressed, subjected to verbal and physical
abuse, and made to feel inferior, serves to injure and intimidate them, as well as to
damage their sense of security and interfere with their opportunity to learn. 19 The
demeaning of young gay and lesbian students in a school environment is
detrimental not only to their psychological health and well-being, but also to their
educational development. Indeed, studies demonstrate that “academic
underachievement, truancy, and dropout are prevalent among homosexual youth
and are the probable consequences of violence and verbal and physical abuse at
school.” Susanne M. Stronski Huwiler and Gary Remafedi, Adolescent
Homosexuality, 33 REV. J UR. U.I.P.R. 151, 164 (1999); see also Thomas A. Mayes,

-- 21 of 56 --

22
Confronting Same-Sex, Student-to-Student Sexual Harassment: Recommendations
for Educators and Policy Makers, 29 F ORDHAM URB. L.J. 641, 655 (2001)
(describing how gay students are at a greater risk of school failure and dropping
out, most likely as a result of “social pressure and isolation”); Amy Lovell, “Other
Students Always Used to Say, ‘Look At The Dykes’”: Protecting Students From
Peer Sexual Orientation Harassment, 86 CAL . L. REV. 617, 625-28 (1998)
(summarizing the negative effects on gay students of peer sexual orientation
harassment). One study has found that among teenage victims of anti-gay
discrimination, 75% experienced a decline in academic performance, 39% had
truancy problems and 28% dropped out of school. See Courtney Weiner, Note, Sex
Education: Recognizing Anti-Gay Harassment as Sex Discrimination Under Title
VII and Title IX, 37 COLUM. HUM. RTS. L. REV. 189, 225 (2005). Another study
confirmed that gay students had difficulty concentrating in school and feared for
their safety as a result of peer harassment, and that verbal abuse led some gay
students to skip school and others to drop out altogether. H UMAN RIGHTS W ATCH,
HATRED IN THE HALLWAYS (1999),
http://hrw.org/reports/2001/uslgbt/Final-05.htm#P609_91364. Indeed, gay teens
suffer a school dropout rate over three times the national average. N AT ’ L MENTAL
HEALTH ASS’ N, BULLYING IN S CHOOLS: HARASSMENT P UTS GAY YOUTH AT RISK,

-- 22 of 56 --

20In fact, California schools like Poway High are required by law “to
minimize and eliminate a hostile environment on school grounds that impairs the
access of pupils to equal educational opportunity.” Cal. Educ. Code § 201(f).
23
http://www.nmha.org/pbedu/backtoschool/bullyingGayYouth.pdf; see also
Maurice R. Dyson, Safe Rules or Gays’ Schools? The Dilemma of Sexual
Orientation Segregation in Public Education, 7 U. P A. J. CONST . L. 183, 187
(2004) (gay teens face greater risks of “dropping out [and] performing poorly in
school”); Kelli Armstrong, The Silent Minority Within a Minority: Focusing on the
Needs of Gay Youth in Our Public Schools, 24 GOLDEN GATE U. L. REV. 67, 76-77
(1994) (describing how abuse by peers causes gay youth to experience social
isolation and drop out of school). In short, it is well established that attacks on
students on the basis of their sexual orientation are harmful not only to the
students’ health and welfare, but also to their educational performance and their
ultimate potential for success in life.
Those who administer our public educational institutions need not tolerate
verbal assaults that may destroy the self-esteem of our most vulnerable teenagers
and interfere with their educational development.20 See Muller by Muller v.
Jefferson Lighthouse Sch., 98 F.3d 1530, 1540 (7th Cir. 1996) (stating that
elementary schools may restrict speech “that could crush a child’s sense of
self-worth”); Saxe, 240 F.3d at 217 (observing that speech that “substantially

-- 23 of 56 --

21Saxe considered the validity of a school district’s anti-harassment policy, a
question we do not address here. See supra n.11. Although in its discussion of a
provision regarding “hostile environment,” Saxe briefly alludes to the “interference
with the rights of others” prong of Tinker, it appears to conflate that prong with the
“substantial disruption” prong and to suggest, perhaps inadvertently, that injurious
slurs may not be prohibited unless they also cause substantial disruption. See Saxe,
240 F.3d at 217. That clearly is not the case. The two Tinker prongs are stated in
the alternative. See Tinker, 393 U.S. at 508. We agree, however, with Saxe’s
conclusion that “it is certainly not enough that the speech is merely offensive to
some listener.” Saxe, 240 F.3d at 217.
22 As noted supra, California law explicitly recognizes the right of students
to be free from harassment on the basis of sexual orientation. See Cal. Educ. Code
§ 200, 201. These provisions were enacted not in a vacuum, but out of a
recognition on the part of the state legislature of “an urgent need to prevent and
respond to acts of hate violence and bias-related incidents that are occurring at an
increasing rate in California’s public schools.” Id. at § 201(d). We also observe
that federal law provides public school students some protection against
harassment and discriminatory treatment based on sexual orientation. For
example, in Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134-35 (9th
Cir. 2003), we held that the Equal Protection Clause protects against school
districts’ indifference to certain kinds of negative speech aimed at gay students.
See also Mayes, supra, at 643 (observing that harassment based on sexual
orientation may be actionable under Title IX as harassment based on sex).
24
interfer[es] with a student’s educational performance” may satisfy the Tinker
standard).21 To the contrary, the School had a valid and lawful basis for restricting
Harper’s wearing of his T-shirt on the ground that his conduct was injurious to gay
and lesbian students and interfered with their right to learn. 22
The dissent claims that we should not take notice of the fact that gay
students are harmed by derogatory messages such as Harper’s because there is no

-- 24 of 56 --

23There is much literature to this effect. See supra pp. 21-23. Our dissenting
colleague’s notion of “evidence” appears to be rather odd. It seems to consist
largely of motion pictures and television shows. The dissent draws conclusions
that it is “not unusual in a high school classroom for students to be ‘off-task’” and
that politics and other subjects “are the ordinary subjects of discourse in high
school corridors” on the basis of our colleague’s viewing of a number of popular
entertainment features. See dis. op. at 4 n.2 & 5 n.3. Perhaps he would prefer us to
cite Brokeback Mountain (Paramount Pictures 2005) or The Matthew Shepard
Story (2002), as evidence of the harmful effects of anti-gay harassment rather than
simply stating that which, to anyone familiar with or in any way sensitive to, the
history or effect of discrimination, is a self-evident fact.
25
“evidence” that they are in fact injured by being shamed or humiliated by their
peers. See dis. op. at 15-18. It is simply not a novel concept, however, that such
attacks on young minority students can be harmful to their self-esteem and to their
ability to learn. As long ago as in Brown v. Board of Education, the Supreme
Court recognized that “[a] sense of inferiority affects the motivation of a child to
learn.” 347 U.S. at 494 (internal quotation marks omitted). If a school permitted
its students to wear shirts reading, “Negroes: Go Back To Africa,” no one would
doubt that the message would be harmful to young black students. So, too, in the
case of gay students, with regard to messages such as those written on Harper’s T-
shirt.23 As our dissenting colleague recently concluded, “[y]ou don’t need an
expert witness to figure out” the self-evident effect of certain policies or messages.
Jespersen v. Harrah’s Operating Co., Inc., No. 03-15045, 2006 WL 962533, at
*13 (9th Cir. April 14, 2006) (Kozinski, Circuit Judge, dissenting). Just as Judge

-- 25 of 56 --

24We should point out that we are considering here whether to reverse a
denial of a preliminary injunction. The extent to which a self-evident proposition
must be established in order to avoid such a reversal under an abuse of discretion
standard is not necessarily the same as may be required at a trial on the merits,
although we express no view on the latter question.
25Although we do not rely on the California statute to support our holding,
we note that the Legislature, in the California Schools Hate Violence Reduction
Act of 1995, declared: “Harassment on school grounds directed at an individual on
the basis of personal characteristics or status creates a hostile environment and
jeopardizes equal educational opportunity as guaranteed by the California
Constitution and the United States Constitution.” Cal. Educ. Code. § 201(c)
(emphasis added).
26
Kozinski found it to be “perfectly clear” – without the aid of any evidence in the
record – that an employer’s makeup requirement burdened women, the fact that
Harper’s demeaning statement is harmful to gay students at Poway High “hardly
seem[s] like [a] question[] reasonably subject to dispute.” Id. at *12. One would
think that if we should be able to take notice of how long it takes women to put on
makeup, or that makeup is an expensive item, we can certainly take notice that it is
harmful to gay teenagers to be publicly degraded and called immoral and
shameful.24 Certainly, the California legislature had no difficulty in determining
that harassment on the basis of sexual orientation adversely affects the rights of
public high school students. See Cal. Educ. Code § 201(c). 25
The dissent takes comfort in the fact that there is a political disagreement
regarding homosexuality in this country. See dis. op. at 12. We do not deny that

-- 26 of 56 --

26For example, in the late 19th century, James G. Blaine ran for President in
a campaign that is remembered for its slogan of “Rum, Romanism and Rebellion.”
See Richard G. Bacon, Rum, Romanism and Romer, 6 DEL . L. REV. 1, 39-40
(2003); see also Joseph P. Viteritti, Davey's Plea: Blaine, Blair, Witters, and the
Protection of Religious Freedom, 27 HARV. J. L. & P UB. P OL ’ Y 299, 311 (2003)
(citation omitted) (observing that Blaine’s campaign for the Republican
nomination “was built around his (and the party’s) opposition to ‘Rum, Romanism,
and Rebellion.’”).
27
there is, just as there was a longstanding political disagreement about racial
equality that reached its peak in the 1950’s and about whether religious minorities
should hold high office that lasted at least until after the 1960 presidential
election,26 or whether blacks or Jews should be permitted to attend private
universities and prep schools, work in various industries such as banks, brokerage
houses, and Wall Street law firms, or stay at prominent resorts or hotels. Such
disagreements may justify social or political debate, but they do not justify students
in high schools or elementary schools assaulting their fellow students with
demeaning statements: by calling gay students shameful, by labeling black students
inferior or by wearing T-shirts saying that Jews are doomed to Hell. Perhaps our
dissenting colleague believes that one can condemn homosexuality without
condemning homosexuals. If so, he is wrong. To say that homosexuality is
shameful is to say, necessarily, that gays and lesbians are shameful. There are
numerous locations and opportunities available to those who wish to advance such

-- 27 of 56 --

28
an argument. It is not necessary to do so by directly condemning, to their faces,
young students trying to obtain a fair and full education in our public schools.
Our dissenting colleague also appears to believe that the fact that Harper
wore his T-shirt in response to a “Day of Silence” somehow lessens the injurious
effect of his act because by participating in the gay rights event, gay students
“perforce acknowledge that their status is not universally admired or respected.”
Dis. op. at 19. This argument is completely without merit. The fact that gays, or
for that matter blacks, Jews, or Latinos, recognize that they are the subject of
prejudice and are not “respected” or considered equal by some in certain public
schools in this country does not mean that they are not injured when the usually
unspoken prejudice turns into harmful verbal conduct. Moreover, the dissent’s
assertion that gay students may prefer to see the demeaning statements contained
on Harper’s T-shirt rather than on bathroom walls makes even less sense. See id.
The First Amendment does not justify students launching such injurious and
harmful personal attacks in either location.
What we hold in this opinion is a far cry from what the dissent suggests. We
do not hold that schools may “define civic responsibility and then ban opposing
points of view.” Id. at 10 n.7. The question of what types of assemblies schools
should or may conduct regarding controversial public issues or what types of

-- 28 of 56 --

29
speech students may otherwise generally engage in regarding such issues is not
before us. Different circumstances require different results. We consider here only
whether schools may prohibit the wearing of T-shirts on high school campuses and
in high school classes that flaunt demeaning slogans, phrases or aphorisms relating
to a core characteristic of particularly vulnerable students and that may cause them
significant injury. We do not believe that the schools are forbidden to regulate
such conduct. Nor, contrary to the dissent, do we believe that because a school
sponsors or permits a “Day of Tolerance” or a “Day of Silence” minority students
should be required to publicly “[c]onfront[]” and “refut[e]” demeaning verbal
assaults on them – that they may be left with no option other than to try to justify
their sexual practices to the entire student body or explain to all their fellow
students why they are not inferior or evil. Id. at 19. The First Amendment does
not require that young students be subjected to such a destructive and humiliating
experience.
In his declaration in the district court, the school principal justified his
actions on the basis that “any shirt which is worn on campus which speaks in a
derogatory manner towards an individual or group of individuals is not healthy for
young people . . . .” If, by this, the principal meant that all such shirts may be
banned under Tinker, we do not agree. T-shirts proclaiming, “Young Republicans

-- 29 of 56 --

27The dissent suggests that our decision might somehow allow a school to
restrict student T-shirts that voice strongly-worded opposition to the war in Iraq.
See dis. op. at 12. That is not so. Our colleague ignores the fact that our holding is
limited to injurious speech that strikes at a core identifying characteristic of
students on the basis of their membership in a minority group. The anti-war T-
shirts posited by the dissent constitute neither an attack on the basis of a student’s
core identifying characteristic nor on the basis of his minority status.
30
Suck,” or “Young Democrats Suck,” for example, may not be very civil but they
would certainly not be sufficiently damaging to the individual or the educational
process to warrant a limitation on the wearer’s First Amendment rights. Similarly,
T-shirts that denigrate the President, his administration, or his policies, or
otherwise invite political disagreement or debate, including debates over the war in
Iraq, would not fall within the “rights of others” Tinker prong. 27
Although we hold that the School’s restriction of Harper’s right to carry
messages on his T-shirt was permissible under Tinker, we reaffirm the importance
of preserving student speech about controversial issues generally and protecting
the bedrock principle that students “may not be confined to the expression of those
sentiments that are officially approved.” Tinker, 393 U.S. at 511; see also Fraser,
478 U.S. at 681 (noting students’ “freedom to advocate unpopular and
controversial views in schools and classrooms”). It is essential that students have
the opportunity to engage in full and open political expression, both in and out of
the school environment. Engaging in controversial political speech, even when it

-- 30 of 56 --

28We do not consider here whether remarks based on gender warrant similar
treatment, preferring to leave that question to another time. We recognize,
however, that problems of gender discrimination remain serious and that they exist
throughout learning institutions, from the public and religious schools to
institutions of higher learning, not excluding the most prominent institutions in the
nation.
Our dissenting colleague worries that offensive words directed at majority
groups such as Christians or whites will not be covered by our holding. See dis.
op. at 21. There is, of course, a difference between a historically oppressed
minority group that has been the victim of serious prejudice and discrimination and
a group that has always enjoyed a preferred social, economic and political status.
Growing up as a member of a minority group often carries with it psychological
and emotional burdens not incurred by members of the majority. In any event, any
verbal assault targeting majorities that might justify some form of action by school
officials is more likely to fall under the “substantial disruption” prong of Tinker or
under the Fraser rule permitting schools to prohibit “plainly offensive” speech.
478 U.S. at 683; cf. Frederick v. Morse, 439 F.3d 1114, 1122 n.44 (9th Cir. 2006)
(observing that Fraser “only enables schools to prevent the sort of vulgar, obscene,
(continued...)
31
is offensive to others, is an important right of all Americans and learning the value
of such freedoms is an essential part of a public school education. Indeed, the
inculcation of “the fundamental values necessary to the maintenance of a
democratic political system” is “truly the ‘work of the schools.’” Fraser, 478 U.S.
at 683 (quoting Tinker, 393 U.S. at 508). Limitations on student speech must be
narrow, and applied with sensitivity and for reasons that are consistent with the
fundamental First Amendment mandate. Accordingly, we limit our holding to
instances of derogatory and injurious remarks directed at students’ minority status
such as race, religion, and sexual orientation. 28 Moreover, our decision is based

-- 31 of 56 --

28(...continued)
lewd or sexual speech that, specially with adolescents, readily promotes
disruption”)
32
not only on the type and degree of injury the speech involved causes to
impressionable young people, but on the locale in which it takes place. See Tinker,
393 U.S. at 506 (student rights must be construed “in light of the special
characteristics of the school environment”). Thus, it is limited to conduct that
occurs in public high schools (and in elementary schools). As young students
acquire more strength and maturity, and specifically as they reach college age, they
become adequately equipped emotionally and intellectually to deal with the type of
verbal assaults that may be prohibited during their earlier years. Accordingly, we
do not condone the use in public colleges or other public institutions of higher
learning of restrictions similar to those permitted here.
Finally, we emphasize that the School’s actions here were no more than
necessary to prevent the intrusion on the rights of other students. Aside from
prohibiting the wearing of the shirt, the School did not take the additional step of
punishing the speaker: Harper was not suspended from school nor was the incident
made a part of his disciplinary record.
Under the circumstances present here, we conclude that the School’s actions
did not extend beyond the scope of the restrictions permitted by Tinker, and that

-- 32 of 56 --

33
the district court did not abuse its discretion in finding that Harper failed to
demonstrate a likelihood of success on the merits of his free speech claim.
ii. Substantial Disruption
The district court concluded that Harper had failed to demonstrate a
likelihood of success on the merits of his free speech claim because there was
sufficient evidence to permit the school officials to “reasonably . . . forecast
substantial disruption of or material interference with school activities.” Tinker,
393 U.S. at 514. In so holding, the district court relied on the declarations of
Principal Fisher, Assistant Principal Antrim, and LeMaster which described how
the previous year’s “Day of Silence” had resulted in “volatile behavior” and
“tensions between students,” including physical altercations. The court also cited
LeMaster’s testimony that he had observed disruption in the class that Harper
attended while wearing the T-shirt, and Principal Fisher’s testimony that Harper
told him that a “tense verbal conversation with a group of students” had already
taken place due to the T-shirt’s message.
In light of our conclusion regarding the application of the “rights of others”
prong of Tinker, we have no cause to decide whether the evidence would be

-- 33 of 56 --

29Our recent decision in Frederick v. Morse, 439 F.3d 1114 (9th Cir. 2006),
is in no respect inconsistent with this opinion. In Frederick, we held that a public
high school’s suspension of a student for displaying off campus, during the
running of the Winter Olympics Torch Relay, a banner that read “Bong Hits 4
Jesus,” violated Tinker. Frederick differs from the present case in four
fundamental ways. First and foremost, Frederick did not address the “intrudes
upon the rights of others” prong of Tinker, the ground upon which we base our
holding here. Rather, the only issue in Frederick was whether the other Tinker
prong – “substantial disruption” – was applicable. Second, in Frederick we
concluded that the school’s actions did not meet the “substantial disruption” prong
because the school officials conceded that they punished the student’s display of
the banner not out of “concern that it would cause disruption” but because “the
speech promotes a social message contrary to the one favored by the school.” Id.
at 1117-18. Here, although in view of our holding, we need not (and do not)
consider the “substantial disruption” prong of Tinker, the School presented
evidence that it restricted Harper’s wearing of the T-shirt because it expected that
his doing so would cause substantial disruption. Third, Frederick involved
punishing student speech that took place “outside the classroom, across the street
from the school, during a non-curricular activity that was only partially supervised
by school officials.” Id. at 1123. By contrast, Harper wore the offending T-shirt
not only on campus, but inside the classroom. Finally, in the case before us, the
School adopted the least restrictive means of curing the injury; it simply forbade
the wearing of the garment. In Frederick, in contrast, the school authorities
punished the student harshly for the purported (but non-existent) offense by
suspending him for ten days. Id. at 1116.
34
sufficient to warrant denial of a preliminary injunction under the “substantial
disruption” prong as well.29
b. Viewpoint Discrimination
In reaching our decision that Harper may lawfully be prohibited from
wearing his T-shirt, we reject his argument that the School’s action constituted
impermissible viewpoint discrimination. The government is generally prohibited

-- 34 of 56 --

35
from regulating speech “when the specific motivating ideology or the opinion or
perspective of the speaker is the rationale for the restriction.” Rosenberger, 515
U.S. at 829. However, as the district court correctly pointed out, speech in the
public schools is not always governed by the same rules that apply in other
circumstances. See Hazelwood, 484 U.S. at 266; Fraser, 478 U.S. at 685; West,
206 F.3d at 1366 (schools may ban student speech that “could well be considered a
form of political speech to be afforded First Amendment protection outside the
educational setting”). Indeed, the Court in Tinker held that a school may prohibit
student speech, even if the consequence is viewpoint discrimination, if the speech
violates the rights of other students or is materially disruptive. See Tinker, 393
U.S. at 511 (stating school cannot prohibit “expression of one particular opinion”
unless it makes a specific showing of constitutionally valid reasons); see also
Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 615 (5th Cir. 2004) (stating that
Tinker “applies to school regulations directed at specific student viewpoints”);
Muller by Muller, 98 F.3d at 1538 (emphasis added) (observing difference between
suppressing religious speech “solely because it is religious” and suppressing
speech that is “religious and disruptive or hurtful”). Thus, pursuant to Tinker,
courts have allowed schools to ban the display of Confederate flags despite the fact
that such a ban may constitute viewpoint discrimination. See Scott, 324 F.3d at

-- 35 of 56 --

30The cases on which Harper relies to support his viewpoint discrimination
claim involve the entirely different question whether schools may deny student
groups access to school resources on the basis of their religious viewpoint. See
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 386-87
(1993) (school allowed use of school facilities for private groups, but prohibited
“meetings for religious purposes”); Prince v. Jacoby, 303 F.3d 1074, 1090 (9th
Cir. 2002) (school allowed student clubs access to school facilities but excluded
student Bible club). Those cases are not relevant here.
36
1248 (upholding ban on Confederate flag where school officials presented
evidence of racial tensions at the school); West, 206 F.3d at 1366 (same). While
the Confederate flag may express a particular viewpoint, “[i]t is not only
constitutionally allowable for school officials” to limit the expression of racially
explosive views, “it is their duty to do so.” Scott, 324 F.3d at 1249. Because, as
we have already explained, the record demonstrates that Harper’s speech intruded
upon the rights of other students, the School’s restriction is permissible under
Tinker, and we must reject Harper’s viewpoint discrimination claim. 30
The dissent claims that although the School may have been justified in
banning discussion of the subject of sexual orientation altogether, it cannot “gag[]
only those who oppose the Day of Silence.” Dis. op. at 11. As we have explained,
however, although Tinker does not allow schools to restrict the non-invasive, non-
disruptive expression of political viewpoints, it does permit school authorities to
restrict “one particular opinion” if the expression would “impinge upon the rights

-- 36 of 56 --

37
of other students” or substantially disrupt school activities. Tinker, 393 U.S. at
509, 511. Accordingly, a school may permit students to discuss a particular subject
without being required to allow them to launch injurious verbal assaults that
intrude upon the rights of other students.
“A school need not tolerate student speech that is inconsistent with its basic
educational mission, [] even though the government could not censor similar
speech outside the school.” Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266
(1988) (citation and internal quotation marks omitted). Part of a school’s “basic
educational mission” is the inculcation of “fundamental values of habits and
manners of civility essential to a democratic society.” Fraser, 478 U.S. at 681
(internal quotation marks omitted). For this reason, public schools may permit,
and even encourage, discussions of tolerance, equality and democracy without
being required to provide equal time for student or other speech espousing
intolerance, bigotry or hatred. As we have explained, supra pp. 28-29, because a
school sponsors a “Day of Religious Tolerance,” it need not permit its students to
wear T-shirts reading, “Jews Are Christ-Killers” or “All Muslims Are Evil Doers.”
Such expressions would be “wholly inconsistent with the ‘fundamental values’ of
public school education.” Id. at 685-86. Similarly, a school that permits a “Day of
Racial Tolerance,” may restrict a student from displaying a swastika or a

-- 37 of 56 --

31We note, incidentally, that the incident in question occurred on the
day after the “Day of Silence,” and not on the day itself.
32We do not, of course, consider whether Harper’s views are consistent with
his religion, nor do we ask whether his religion truly encourages homophobic
conduct. Similarly, we do not consider whether the isolated excerpt from the New
Testament, Romans 1:27, is representative of Christian doctrine generally. All
such inquiries are beyond the judiciary’s authority. See Hernandez v. C.I.R., 490
(continued...)
38
Confederate Flag. See West, 206 F.3d at 1365-66. In sum, a school has the right to
teach civic responsibility and tolerance as part of its basic educational mission; it
need not as a quid pro quo permit hateful and injurious speech that runs counter to
that mission.31
We again emphasize that we do not suggest that all debate as to issues
relating to tolerance or equality may be prohibited. As we have stated repeatedly,
we consider here only the question of T-shirts, banners, and other similar items
bearing slogans that injure students with respect to their core characteristics. Other
issues must await another day.
2. Free Exercise of Religion Claim
Harper also contends that the district court erred because he was entitled to a
preliminary injunction as a result of the School’s violation of his rights under the
Free Exercise Clause. He asserts that his wearing of the T-shirt was “motivated by
sincerely held religious beliefs” regarding homosexuality 32 and that the School

-- 38 of 56 --

32(...continued)
U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of
particular beliefs or practices to a faith, or the validity of particular litigants’
interpretations of those creeds.”)
39
“punished” him for expressing them, or otherwise burdened the exercise of those
views. Additionally, Harper argues that the School “attempted to change” his
religious views and that this effort violated both the Free Exercise Clause and the
Establishment Clause.
The Free Exercise Clause of the First Amendment provides that Congress
shall make no law “prohibiting the free exercise” of religion. U.S. Const. amend. I.
The Clause prohibits the government from “compel[ling] affirmation of religious
belief, punish[ing] the expression of religious doctrines it believes to be false,
impos[ing] special disabilities on the basis of religious views or religious status, or
lend[ing] its power to one or the other side in controversies over religious authority
or dogma.” Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S.
872, 877 (1990) (internal quotation marks and citations omitted).
In Sherbert v. Verner, the Supreme Court held that governmental actions that
substantially burden a religious belief or practice must be justified by a compelling
state interest and must be narrowly tailored to serve that interest. 374 U.S. 398,
402-03 (1963). The Sherbert test was later largely discarded in Smith, which held

-- 39 of 56 --

33“A law is one of neutrality and general applicability if it does not aim to
‘infringe upon or restrict practices because of their religious motivation,’ and if it
does not ‘in a selective manner impose burdens only on conduct motivated by
religious belief[.]’” San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d
1024, 1031 (9th Cir. 2004) (quoting Lukumi, 508 U.S. at 546).
40
that the “right of free exercise does not relieve an individual of the obligation to
comply with a ‘valid and neutral law of general applicability on the ground that the
law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”
494 U.S. 872, 879 (1990) (citation omitted). The Court held that a neutral law of
general applicability need not be supported by a compelling governmental interest
even though it has the incidental effect of burdening religion. See id. at 885; see
also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531
(1993).33 The Court noted, however, that a “hybrid claim,” i.e., a claim that
involves “not the Free Exercise Clause alone, but the Free Exercise Clause in
conjunction with other constitutional protections, such as freedom of speech,”
merits application of strict scrutiny: the law or action must be narrowly tailored to
advance a compelling government interest. Smith, 494 U.S. at 881; see also Miller
v. Reed, 176 F.3d 1202, 1207 (9th Cir. 1999) (same). Although it did not say so
expressly, in Smith the Court preserved the Sherbert test for use in hybrid-rights
cases. In order, however, “to assert a hybrid-rights claim, a free exercise plaintiff
must make out a colorable claim that a companion right has been violated – that is,

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34Harper does not argue that the School’s ban on his wearing the injurious
and demeaning T-shirt was arbitrary or capricious, only that it violated the First
Amendment rights discussed herein.
35Although Harper refers to “other constitutional claims” and even
“numerous constitutional claims,” the only claim that has the potential to justify his
invoking of “hybrid” status is the free speech claim.
41
a fair probability or a likelihood, but not a certitude, of success on the merits.”
Miller, 176 F.3d at 1207 (internal citation and quotation marks omitted).
Harper does not contend that the School’s prohibition against his wearing
his T-shirt was motivated by other than secular reasons or that it was applied to
him because of his religious views. Nor is there anything in the record to suggest
that other students wearing T-shirts similarly demeaning of gay and lesbian
members of the student body would be treated differently, Christians or not. 34
Under Smith, Harper’s claim would surely fail. Harper asserts, however, that we
should apply Sherbert’s strict scrutiny test to his free exercise claim because his is
a “hybrid” claim involving the Free Exercise Clause in conjunction with other
constitutional claims.35 The School disagrees, arguing that the district court
properly applied rational basis review under Smith because its prohibition of

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36The district court determined that, “without the free speech claim,
plaintiff’s free exercise claim does not require strict scrutiny.” It then ignored the
free speech claim, apparently because it had already found that it was unlikely to
succeed. Applying rational basis review, the court concluded that the School’s
action was rationally based on a legitimate pedagogical concern, and that Harper
failed to demonstrate that it was irrational or wholly arbitrary.
37We note that the School conceded in essence that the free speech claim was
“colorable” for purposes of Harper’s establishing “irreparable harm” – one of the
factors that may in combination with others justify issuance of a preliminary
injunction. See supra pp. 10-12. We need not consider, however, whether
“colorable” has different meanings for purposes of irreparable harm under
Sammartano, and for purposes of a hybrid claim under Miller, as we assume here
that Harper’s free speech claim is colorable for the latter purpose as well.
42
Harper’s speech involved a “valid and neutral [rule] of general applicability.” 36
Smith, 494 U.S. at 879.
We seriously doubt that there is “a fair probability or a likelihood” that
Harper’s claim that a companion right – free speech – has been violated will
succeed on the merits, as required by Miller. 176 F.3d at 1207 (internal quotation
marks omitted).37 In fact, we are fairly confident that it will not, for the reasons we
have explained supra Part V.1. Nevertheless, we need not decide whether Harper’s
free exercise claim is properly deemed a “hybrid” claim, because, whether or not
Sherbert’s strict scrutiny test applies, Harper cannot prevail here. “Under the
Sherbert test, governmental actions that substantially burden a religious practice

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38We have described the Sherbert test as requiring the weighing of three
factors: (1) how much the state action interferes with the exercise of religious
beliefs; (2) whether there is a compelling state interest justifying a burden on
religious beliefs; and (3) whether accommodating those beliefs would unduly
interfere with the fulfillment of the government interest. N.L.R.B. v. Hanna Boys
Center, 940 F.2d 1295, 1305 (9th Cir. 1991).
43
must be justified by a compelling governmental interest.” 38 Smith, 494 U.S. at 883.
In this case, Harper flunks the test in every respect.
Assuming that Sherbert applies, we must first consider whether the School’s
actions “substantially burden” a religious practice or belief. The record simply
does not demonstrate that the School’s restriction regarding Harper’s T-shirt
imposed a substantial burden upon the free exercise of Harper’s religious beliefs.
There is no evidence that the School “compell[ed] affirmation of a repugnant
belief,” “penalize[d] or discriminate[d] against [Harper] because [he] hold[s]
religious views abhorrent to the authorities,” or “condition[ed] the availability of
benefits upon [Harper’s] willingness to violate a cardinal principle of [his]
religious faith.” Sherbert, 374 U.S. at 402, 406. Nor did the School “lend its
power to one or the other side in controversies over religious authority or dogma,”
or “punish the expression of religious doctrines it believes to be false.” Smith, 494
U.S. at 877.

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44
Despite Harper’s allegation that the School “punished” him for expressing
his religious views, the record demonstrates the contrary: the School did not punish
Harper at all. It simply prohibited him from wearing the offensive and disruptive
shirt and required him to refrain from attending class for a portion of a day, if he
insisted on continuing to wear it. Nor did the restriction imposed on Harper’s
wearing of the T-shirt constitute a substantial limitation on his right to express his
religious views. No one has the right to proclaim his views at all times in all
manners in all places, regardless of the circumstances, and Harper does not contend
that his religion suggests otherwise. Harper remains free to express his views,
whatever their merits, on other occasions and in other places. The prohibition
against the wearing of a T-shirt in school does not constitute a substantial burden
on the exercise of his religious beliefs.
Even if a religious creed, or an individual’s interpretation of that creed,
could be said to require its adherents to proclaim their religious views at all times
and in all places, and to do so in a manner that interferes with the rights of others,
the First Amendment would not prohibit the state from banning such disruptive
conduct in certain circumstances, including on a high school campus. The
Constitution does not authorize one group of persons to force its religious views on
others or to compel others to abide by its precepts. Nor does it authorize

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39As discussed earlier, the School did no more than necessary to further its
compelling interest in protecting the rights of students and maintaining a healthy
(continued...)
45
individuals to engage in conduct, including speech, on the grounds of public
schools, that is harmful to other students seeking to obtain a fair and equal
education – even if those individuals hold a sincere belief that the principles of
their religion require them to discriminate against others, or to publicly proclaim
their discriminatory views whenever they believe that “evil” practices are being
condoned. See Sherbert, 374 U.S. at 403 (internal quotation marks omitted)
(“[E]ven when the action is in accord with one’s religious convictions, it is not
totally free from legislative restrictions.”). Schools may prohibit students and
others from disrupting the educational process or causing physical or psychological
injury to young people entrusted to their care, whatever the motivations or beliefs
of those engaged in such conduct. Indeed, the state’s interest in doing so is
compelling.
Because there is no evidence that the School’s restriction on Harper’s
wearing of his T-shirt substantially burdened a religious practice or belief, and
because the School has a compelling interest in providing a proper educational
environment for its students and because its actions were narrowly tailored to
achieve that end,39 it would appear that the district court did not abuse its discretion

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39(...continued)
learning environment. It merely prohibited Harper from wearing the T-shirt at
school, and did not even take the additional step of suspending or otherwise
punishing him.
46
in finding that Harper failed to demonstrate a likelihood of success on the merits as
to his free exercise of religion claim. Before reaching that conclusion, however,
we must deal with one final argument that Harper raises as a part of that claim.
Harper asserts that the School “attempted to change” his religious views that
“homosexuality is harmful to both those who practice it and the community at
large.” Specifically, Harper alleges that the school officials’ comments that his
shirt was “inflammatory,” Detective Hubbert’s questioning of him, and Assistant
Principal Giles’ statement that he leaves his Christian faith in the car when he
comes to school, all were attempts by school authorities to change his religious
views.
The district court rejected Harper’s contention. Indeed, there is no evidence
in the record that the school representatives sought to change Harper’s religious
beliefs. Harper’s complaint avers that Detective Hubbert “proposed to [Harper]
that as a member of the Christian faith, he should understand that Christianity was
based on love not hate, and that [he] should not be offensive to others.” Hubbert’s
homily did not constitute an attempt to change Harper’s religious views, simply his

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47
offensive behavior; at most, it was, as the district court concluded, an “option[]
presented to and left with” Harper. The statements that the message on Harper’s
shirt was “inflammatory” and would be harmful to the educational environment
were merely statements of fact that represented the School’s informed judgment.
More important, like Hubbert’s statement, they were designed to affect Harper’s
behavior not his beliefs. As for Giles’ comments, his affidavit stated that he did
not tell Harper to “leave his own faith in the car,” but explained that, as a school
employee, he, Giles, had to leave his own Christian faith in the car when he came
to work. While Giles’ statement might also be construed as an attempt to
encourage Harper to change his conduct – to refrain, while on campus, from
expressing religious views that denigrate others – it cannot be characterized as an
attempt to change his views. In fact, rather than tell Harper to change his beliefs,
Giles encouraged him to join the campus Bible Club so that he could become part
of an “activity that would express his [Christian] opinions in a positive way on
campus,” an activity that was wholly consistent with Harper’s religious views. The
record thus does not support Harper’s claim that the School violated his free
exercise right by “attempting to change” his religious views.
Moreover, school officials’ statements and any other school activity
intended to teach Harper the virtues of tolerance constitute a proper exercise of a

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48
school’s educational function, even if the message conflicts with the views of a
particular religion. A public school’s teaching of secular democratic values does
not constitute an unconstitutional attempt to influence students’ religious beliefs.
Rather, it simply reflects the public school’s performance of its duty to educate
children regarding appropriate secular subjects in an appropriate secular manner.
As we have reiterated earlier, “the inculcation of fundamental values necessary to
the maintenance of a democratic political system” is “truly the ‘work of the
schools.’” Fraser, 478 U.S. at 681, 683 (quoting Ambach v. Norwick, 441 U.S. 68,
76-77 (1979); quoting Tinker, 393 U.S. at 508). Public schools are not limited to
teaching materials that are consistent with all aspects of the views of all religions.
So long as the subject and materials are appropriate from an educational standpoint
and the purpose of the instruction is secular, the school’s teaching is not subject to
a constitutional objection that it conflicts with a view held by members of a
particular religion. There is no evidence here that the school officials’ comments
were associated with a religious, as opposed to a secular, purpose. Their affidavits
demonstrate that the School acted in order to maintain a secure and healthy
learning environment for all its students, not to advance religion.
The Constitution does not preclude school districts from teaching the
essential elements of democracy or otherwise performing their proper educational

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49
mission simply because some individuals or groups may assert that their religious
views are inconsistent with the lessons taught as a part of that mission.
Accordingly, we affirm the district court’s decision that Harper was not entitled to
a preliminary injunction on the basis of his free exercise claim.
3. Establishment Clause Claim
Finally, we consider the district court’s conclusion that Harper did not
demonstrate a likelihood of success on the merits of his claim that the School
violated the Establishment Clause by attempting to “coerce” him into changing his
religious beliefs that “homosexuality is harmful to both those who practice it and
the community at large.”
Harper’s Establishment Clause claim as presented on appeal appears to be
simply a restatement of his Free Exercise claim. In fact, as the Supreme Court has
noted, its Establishment Clause cases “for the most part have addressed
governmental efforts to benefit religion or particular religions,” and thus
allegations of an “attempt to disfavor” a religion, such as Harper’s, are properly
analyzed under the Free Exercise Clause. Lukumi, 508 U.S. at 532 (emphasis
added). However, in the interest of thoroughness, we briefly address Harper’s
claim of “coercion” under the Establishment Clause.

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40The only other case upon which Harper relies for his coercion claim is
Peloza v. Capistrano Unified Sch. Dist., in which this court observed that “[t]o
permit [a teacher] to discuss his religious beliefs with students during school time
on school grounds would violate the Establishment Clause.” 37 F.3d 517, 522 (9th
Cir. 1994). Like Lee, the case is inapposite as it involves the entirely different
issue of school-sanctioned religious speech which “would have the primary effect
of advancing religion, and would entangle the school with religion.” Id.
50
Harper bases his claim almost entirely on the Supreme Court’s statement in
Lee v. Weisman, that “at a minimum, the Constitution guarantees that government
may not coerce anyone to support or participate in religion or its exercise, or
otherwise act in a way which ‘establishes a [state] religion or religious faith, or
tends to do so.’” 40 505 U.S. 577, 587 (1992) (quoting Lynch v. Donnelly, 465 U.S.
668, 678 (1984)). Here, there is no evidence that the School’s actions were based
on anything other than an entirely secular and legitimate aim of protecting the
rights of students and promoting a tolerant and safe learning environment. There is
certainly no evidence (or even allegation) that school authorities sought to coerce
or encourage Harper to participate in some other religion or to adopt some state-
supported or other religious faith. To reiterate what we explained in the “Free
Exercise” section of this opinion, the teaching of secular democratic values does
not violate the First Amendment, even if that teaching conflicts in some respect
with a sincerely held view that a student or his parents may attribute to the
particular religion to which they adhere.

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51
Government conduct does not violate the Establishment Clause when (1) it
has a secular purpose, (2) its principal and primary effect neither advances nor
inhibits religion, and (3) it does not foster excessive government entanglement in
religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). For the reasons
we have already explained, the record supports the district court’s conclusion that
the School’s actions “had a secular purpose, i.e., promoting tolerance, and not
advancing or inhibiting religion.” It is also clear from the record that the primary
effect of the School’s banning of the T-shirt was not to advance or inhibit religion
but to protect and preserve the educational environment and the rights of other
members of the student body. Nor can there be any question in this case of
excessive government entanglement in religion. Finally, as we have already
discussed, there is no evidence in the record that school officials attempted to
change Harper’s religious beliefs. A fortiori, there is no evidence that they
attempted to coerce Harper into changing his beliefs. For all the above reasons, we
hold that the district court did not abuse its discretion in finding that Harper failed
to demonstrate a likelihood of success on the merits of his Establishment Clause
claim.
4. Other Claims

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52
In addition to the denial of his preliminary injunction motion, Harper asks
that we review the district court’s dismissal of his due process and equal protection
causes of action, as well as the court’s grant of qualified immunity to the individual
defendants, under the doctrine of “pendent appellate jurisdiction.” We may
exercise pendent appellate jurisdiction “over rulings that are inextricably
intertwined with or necessary to ensure meaningful review of decisions that are
properly before us on interlocutory appeal.” Poulos v. Caesars World, Inc., 379
F.3d 654, 668 (9th Cir. 2004) (internal quotation marks omitted). In order for
pendent issues to be “inextricably intertwined” they must either “‘(a) be so
intertwined that we must decide the pendent issue in order to review the claims
properly raised on interlocutory appeal . . . or (b) resolution of the issue properly
raised on interlocutory appeal necessarily resolves the pendent issue.’” Batzel v.
Smith, 333 F.3d 1018, 1023 (9th Cir. 2003) (quoting Cunningham v. Gates, 229
F.3d 1271, 1285 (9th Cir. 2000)).
With regard to Harper’s due process cause of action, it is based on his claim
that the School’s dress code is impermissibly vague in violation of the Due Process
Clause. As we have already explained, see supra note 11, we need not consider the
validity of the School’s dress code in order to rule on the preliminary injunction.
As to Harper’s equal protection contention, as presented on this appeal it is simply

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53
a restatement of his viewpoint discrimination claim which, for the reasons already
provided, we have rejected. Whether or not there may be other aspects to the claim
we do not know with certainty at this point in the proceedings; thus we do not
review that claim here. Accordingly, neither the due process nor equal protection
claim is one we must decide in order to resolve the issue before us, and our
resolution of the issue before us does not require us to determine the merits of
either claim. Whatever the merits of those claims (and we have no cause here to
question the district court’s decision as to either), their validity or invalidity is of
no consequence here. Finally, the district court’s dismissal of Harper’s damages
claims based on a finding of qualified immunity is not “inextricably intertwined”
with the denial of the preliminary injunction motion, Poulos, 379 F.3d at 668, as
we need not “decide the [qualified immunity] issue in order to review the claims
properly raised on interlocutory appeal . . . .” Batzel, 333 F.3d at 1023 (quoting
Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir. 2000)).
VI. Conclusion
We hold that the district court did not abuse its discretion in denying the
preliminary injunction. Harper failed to demonstrate that he will likely prevail on
the merits of his free speech, free exercise of religion, or establishment of religion
claims. In fact, such future success on Harper’s part is highly unlikely, given the

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54
legal principles discussed in this opinion. The Free Speech Clause permits public
schools to restrict student speech that intrudes upon the rights of other students.
Injurious speech that may be so limited is not immune from regulation simply
because it reflects the speaker’s religious views. Accordingly, we affirm the
district court’s denial of Harper’s motion for a preliminary injunction.
AFFIRMED; REMANDED for further proceedings consistent with this opinion.

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55
Exhibit A

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56
COUNSEL
Robert H. Tyler, Kevin Theriot; Alliance Defense Fund, Murrieta, California, for
the plaintiff-appellant.
Daniel Shinoff, Jack M. Sleeth, Jr., Paul V. Carelli, IV; Stutz, Artiano, Shinoff &
Holtz, APC, San Diego, California, for the defendants-appellees.

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