Excerpt from an article by an ACLU board member:
"One of the clearest indications of a retreat from defending all speech regardless of content is the ACLU's virtual silence in Harper v. Poway, an important federal case involving a high-school student's right to wear a T-shirt condemning homosexuality. Of course, the ACLU doesn't speak out on every case, but historically it has vigorously defended student speech rights, as its Web site stresses. It is currently representing a student in a speech case before the Supreme Court, Morse v. Frederick (involving the right of a student to carry a nonsensical "Bong Hits 4 Jesus" banner at an off-campus event). The ACLU pays particular attention to the right to wear T-shirts with pro-gay messages in school, proudly citing cases in which it represented students wearing pro-gay (as well as anti-Bush) T-shirts. This year, the ACLU awarded a Youth Activist Scholarship to a student who fought the efforts of her school to bar students from wearing T-shirts that said "Gay, Fine by me."
So in 2004, when Tyler Chase Harper was disciplined for wearing a T-shirt declaring his religious objections to homosexuality, civil libertarians might have expected the ACLU to protest loudly. Mr. Harper was barred from attending classes when he wore the antigay T-shirt to school on an official "Day of Silence," when gay students taped their mouths to symbolize the silencing effect of intolerance. Represented by the Alliance Defense Fund, he sued the school district. That same year, the ACLU initiated the first of two actions against a Missouri school that punished students for wearing "gay supportive T-shirts," eventually securing a promise from the school to "stop censoring," the ACLU Web site boasts. Mr. Harper, however, was unsuccessful in his quest to stop school censorship. In a patronizing, antilibertarian decision in which Judge Stephen Reinhardt stressed the imagined feelings of gay students, the Ninth Circuit rejected Mr. Harper's First Amendment claims. (There was a sharp dissent from Judge Alex Kozinski.)
Perhaps the ACLU was observing its own prolonged Day of Silence, because, while it pays close attention to federal appellate court decisions on civil liberties, it effectively ignored this terrible precedent, even when Mr. Harper appealed to the Supreme Court. The Court dismissed the case as moot because Mr. Harper had graduated but took the unusual step of vacating the decision so that it no longer exists as precedent (no thanks to the ACLU). Mr. Harper's younger sister, still in school, continued pressing his claims and her case is pending before the Ninth circuit. The ACLU has not adopted her cause either.
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