Student can wear 'Be Happy, Not Gay' T-shirt in time for protests

ILLINOIS — The 7th U.S. Circuit Court of Appeals Wednesday reversed a district court's decision by allowing a Neuqua Valley High School student to wear a "Be Happy, Not Gay" T-shirt to school while his case proceeds.

Then-freshman Alexander Nuxoll and then-senior Heidi Zamencnik filed suit against the Indian Prairie School District No. 204 on March 21, 2007, after Zamencnik was told to remove the T-shirt during the 2006 "Day of Silence" -- an annual protest against harassment of lesbian, gay, bisexual and transgendered individuals. The next month, a federal district court denied the students' request for an injunction, ruling the school's rule had not "substantially burdened" the students' rights to religious expression.

A three-judge panel of the 7th Circuit unanimously found that Nuxoll was entitled to wear the shirt while the case is decided. But the judges differed sharply in their legal analysis.

The majority opinion by Judge Richard Posner said a school can protect students from the invasion of their legal rights by other students.

"But people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life," he wrote.

Posner wrote that the courts should not have a "heavy hand" in the regulation of student speech by administrators.

"The contribution that kids can make to the marketplace in ideas and opinions is modest and a school's countervailing interest in protecting its students from offensive speech by their classmates is undeniable,"

Posner wrote.

The judge continued by referencing Tinker v. Des Moines Independent Community School District, where the Supreme Court ruled in 1969 that school officials may not punish or prohibit student speech unless they can clearly demonstrate that it will result in a material and substantial disruption of normal school activities or invade the rights of others.

Posner said Tinker and subsequent cases show that administrators can meet this burden as long as they can point to facts that would lead a reasonable administrator to predict a disruption, and he said courts should recognize a wide range of potential disturbances.

"If there is reason to think that a particular type of student speech will lead to a decline in students' test scores, an upsurge in truancy, or other symptoms or a sick school -- symptoms therefore of a substantial disruption -- the school can forbid the speech."

Still, Posner said Neuqua Valley had not presented enough evidence under that standard to show that Nuxoll's shirt would disrupt the school. But he said further proceedings "may cast the issue in a different light."

Judge Ilana Rovner concurred in the judgment but wrote that the majority erred by portraying Tinker in such "a convoluted fashion."

"I heartily disagree with my brothers about the value of the speech and speech rights of high school students ... We not only permit but expect youths to exercise those liberties."

Jonathan Scruggs, Alliance Defense Fund attorney for Nuxoll and Zamencnik. said his next step is contingent upon any incidents that might happen during today's "Day of Silence" and Monday's "Day of Truth" -- an event designed to counter the "Day of Silence." Zamencnik is still claiming damages, and Nuxoll's case will focus on how he can further express his religious beliefs.

"It's vital that the 7th Circuit recognized that you can't suppress speech just because someone thinks it's offensive," Scruggs said. "If that's the case then there is no First Amendment."

ADF attorneys are working on a similar case involving Poway Unified School District in California. ADF attorneys in that case filed an opening appeals brief March 25 in the 9th U.S. Circuit Court of Appeals, asking the court to declare unconstitutional a school policy against offensive speech under which student Tyler Chase Harper was punished.

Harper wore his T-Shirt, which read, "Be ashamed, our school embraced what God has condemned," on 2004's Day of Silence. In February, a federal district judge ruled for a second time that the school did not violate Harper's freedom of speech and free exercise of religion rights.

Illinois, Neuqua Valley High School, news

More Information

Nuxoll v. Indian Prairie Sch. Dist. #204, No. 08-1050, 2008 WL 181137 (7th Cir. Apr. 23, 2008).

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