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

ILLINOIS — The 7th U.S. Circuit Court of Appeals Wednesdayreversed a district court’s decision by allowing a Neuqua Valley HighSchool student to wear a “Be Happy, Not Gay” T-shirt to school whilehis case proceeds.

Then-freshman Alexander Nuxoll and then-senior Heidi Zamencnik filed suitagainst the Indian Prairie School District No. 204 on March 21, 2007, afterZamencnik was told to remove the T-shirt during the 2006 “Day ofSilence” — an annual protest against harassment of lesbian, gay,bisexual and transgendered individuals. The next month, a federal district courtdenied the students’ request for an injunction, ruling the school’srule had not “substantially burdened” the students’ rights toreligious expression.

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

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

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

Posner wrote that the courts should not have a “heavy hand” inthe regulation of student speech by administrators.

“The contribution that kids can make to the marketplace in ideas andopinions is modest and a school’s countervailing interest in protectingits students from offensive speech by their classmates is undeniable,”

Posner wrote.

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

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

“If there is reason to think that a particular type of student speechwill lead to a decline in students’ test scores, an upsurge in truancy, orother symptoms or a sick school — symptoms therefore of a substantialdisruption — the school can forbid the speech.”

Still, Posner said Neuqua Valley had not presented enough evidence underthat standard to show that Nuxoll’s shirt would disrupt the school. But hesaid further proceedings “may cast the issue in a differentlight.”

Judge Ilana Rovner concurred in the judgment but wrote that the majorityerred by portraying Tinker in such “a convoluted fashion.”

“I heartily disagree with my brothers about the value of the speechand speech rights of high school students … We not only permit but expectyouths 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 duringtoday’s “Day of Silence” and Monday’s “Day ofTruth” — an event designed to counter the “Day ofSilence.” Zamencnik is still claiming damages, and Nuxoll’s casewill focus on how he can further express his religious beliefs.

“It’s vital that the 7th Circuit recognized that youcan’t suppress speech just because someone thinks it’soffensive,” Scruggs said. “If that’s the case then there is noFirst Amendment.”

ADF attorneys are working on a similar case involving Poway Unified SchoolDistrict in California. ADF attorneys in that case filed an opening appealsbrief March 25 in the 9th U.S. Circuit Court of Appeals, asking the court todeclare unconstitutional a school policy against offensive speech under whichstudent Tyler Chase Harper was punished.

Harper wore his T-Shirt, which read, “Be ashamed, our school embracedwhat God has condemned,” on 2004’s Day of Silence. In February, afederal district judge ruled for a second time that the school did not violateHarper’s freedom of speech and free exercise of religion rights.