A Poway High School student suspended for displaying antigay messages on his shirt had his day in federal court last week.

Tyler Chase Harper sued the Poway Unified School District in June with assistance from the Alliance Defense Fund, a Christian legal advocacy group.

Harper’s attorney, Robert Tyler, said that by asking Harper to remove the messages, school officials had violated his client’s rights of free speech and free exercise.

Jack Sleeth, an attorney for the Poway Unified School District, asked U.S. District Judge John A. Houston to dismiss the case, saying state law mandates tolerance and forbids harassment or intimidation of GLBT students. Sleeth said the statements on Harper’s shirt could have led to a disruption of school proceedings.

After 90 minutes of arguments, Houston said he would rule on the case at a later date.

Filed in June, the suit charges that officials at Poway High School violated Harper’s First Amendment rights April 22. Harper was suspended for wearing a T-shirt with the words “homosexuality is shameful,” in response to a Day of Silence event, in which students show their solidarity for GLBT classmates by remaining silent.

Harper was suspended after he refused a teacher’s request to remove the antigay statements from his shirt, which were written on masking tape. Harper had worn the statements the previous day without comment from school administration.

Tyler said not allowing his client to wear the shirt was an “egregious violation” of his First Amendment rights. “Speech doesn’t lose its protected character because it may be offensive,” he said.

Tyler used the example of two cases based on freedom of speech and expression to show the difference between speech that disrupts and speech that does not.

In Tinker v. Des Moines Independent Community School District, students were expelled after wearing black armbands to symbolically protest the Vietnam War. The Supreme Court ruled that students “do not shed their constitutional rights at the schoolhouse gate” and that the First Amendment protects the rights of students’ to express political and social views.

In Blackwell v. Issaquena County Board of Education, students at a segregated, all-black high school came to school wearing “freedom buttons,” which depicted black and white hands clasped together. In this case, students began pinning the buttons on others against their wishes and created an audible disturbance. The court denied parents’ request for an injunction to allow the buttons because it found that the speech, which is constitutionally protected, had led to a disturbance.

Unlike that Blackwell case, Tyler said Harper had “peacefully, passively worn a shirt with expressive content” and that it only became a problem when a teacher confronted him.

Houston noted the case of Hazelwood School District v. Kuhlmeier, in which a principal removed from a school newspaper articles on the impact of teen pregnancy and divorce.

The principal defended his action on the grounds that he was protecting the privacy of some pregnant students mentioned in the article and of other students from being exposed to inappropriate references to sexual activity.

The Supreme Court ruled that the principal acted reasonably and that a school is not required to tolerate speech “that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”

Houston asked Tyler whether Poway High School officials didn’t have a responsibility to protect its students by “anticipating disruption.”

“Hasn’t the Supreme Court sanctioned taking this action?” Houston said.

Because school district policies and state law protect students from harassment based on sexual orientation, Houston said he could potentially find that the school acted appropriately as a “due process of law,” even under the Tinker case.

“The answer is not to censor speech,” Tyler said. “Students cannot be blindfolded.”

Sleeth argued that the school’s responsibility was to protect and educate students while bringing them into conformity with socially acceptable conduct.

Harper would likely have been fired from a job for wearing the same shirt, he said.

The student could have chosen a less offensive message, Sleeth said, such as “love the sinner, hate the sin.”

“There’s a lot of good phrases out there he could have used to get his viewpoint across without offending anybody.”

As to whether Harper’s right to free exercise of his religious views had been violated, Houston said proof is required that not being allowed to display the antigay messages prohibited the student from observing his religion.

“There’s no practice of his [Harper’s] faith I’m aware of that requires him to say bad things about homosexuals,” said the judge.

Tyler argued that his client held a “sincere religious belief that the homosexual lifestyle is destructive to individuals and to society” and is compelled through Biblical mandate to warn others of its spiritual and physical repercussions.

“So what you’re saying,” Houston asked, “is if [hateful] speech comes directly out of the Bible … they can do nothing because it comes from a religious source?”

“Does it matter that sexual orientation is a protected class in your mind?” Houston asked.

“No, your honor,” Tyler said. “It’s a viewpoint. If one viewpoint is going to be allowed, all viewpoints must be allowed.”

Houston asked Tyler to prove his client had been subjected to unequal treatment.

“Did Harper go to the school and ask for a ‘day of intolerance’ and was denied?” the judge asked.

“Whether or not one considers my client to be bigoted – he’s not,” Tyler said, adding that the law should always rule in favor of upholding constitutionally protected speech.

“The school district wants to talk about tolerance,” Tyler added. “They’re not really tolerant. They’re tolerant of one viewpoint.”

Tyler said several students taking part in the Day of Silence the year before had come to school with duct tape over their mouths, refusing to speak.

“That is far more disruptive than a student like Harper,” he said.

However, argued Sleeth, the school’s decision was not about whether the message came from a GLBT or religious point of view, but whether it was offensive to a protected class.

“Negative messages lead to intolerance and to trouble,” he said.

The Day of Silence was approved on the basis that its message be conveyed in a positive manner, said Sleeth. Banning speech “on the basis of positive or negative content,” said Tyler, has the potential to “take us into a fascist environment.” He said his client had suffered “government coercion at its worst” by being photographed and questioned by an armed police officer.

“I’m concerned when we hear words like fascist and government coercion,” Sleeth said. “I don’t think we are fascist or evil or doing anything other than protecting students…. It seems to me you’ve got to give the administration free reign to determine the hostility of statements being made.”