Appeals court upholds students' right to wear ‘Be Happy, Not Gay’ shirts

ILLINOIS — The 7th U.S. Circuit Court of Appeals in Chicagoupheld a permanent injunction Tuesday allowing high school students to displaya message critical of homosexuality.

“A school that permits advocacy of the rights of homosexualstudents cannot be allowed to stifle criticism of homosexuality,” Judge RichardPosner wrote for a unanimous three-judge panel.

Heidi Zamecnik, a former student at Neuqua Valley HighSchool, wore a “Be Happy, Not Gay” T-shirt to school in April 2006, the dayafter the school allowed students and teachers to participate in a “Day ofSilence” to protest LGBT harassment. After school administrators told Zamecnikshe must change her shirt or be sent home, administrators altered the shirt tosay “Be Happy,” according to the original complaint.

In response, the senior filed a lawsuit against the IndianPrairie School District with freshman Alexander Nuxoll. Both argued their FirstAmendment rights had been violated.

The 7th Circuit in 2008 reversed an earlier district courtdecision, allowing Nuxoll to wear a similar T-shirt while the case was stillbeing argued.

The latest round of arguments were heard Jan. 19. The schooldistrict was appealing $25 in damages awarded to each student in an April 29,2010, summary judgment, as well as a permanent injunction allowing all studentsto display the “Be Happy, Not Gay” message.

Adam Goldstein, attorney advocate for the Student Press LawCenter, said the court made the only decision it could.

“You can’t obliterate an idea because you oppose it,” hesaid. “Every negative thing the school says about these shirts could be truebut that doesn’t mean they can prevent students from wearing them.”

School officials said they had received complaints fromteachers and students about the T-shirt. In their appeal, the school cited“emotional, violent and/or threatening reactions” to the message. In October,the school district’s attorneys and the former students reached a partialsettlement, in which the school board agreed to change dress code policies andthe student handbook to prevent First Amendment rights violations.

“The school argued (and still argues) thatbanning ‘Be Happy, Not Gay’ was just a matter of protecting the ‘rights’ of thestudents against whom derogatory comments are directed,” Posner wrote. “Butpeople in our society do not have a legal right to prevent criticism of theirbeliefs or even their way of life.”

Calls to attorneys for the students and the school district were not returned by press time.