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    March
    01
    2011

    Seventh Circuit Court of Appeals panel rules for high school students in free speech case

    Joe Forward
    Legal Writer

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    March 1, 2011 – The U.S. Court of Appeals for the Seventh Circuit has ruled that high school students have a constitutional right to wear a T-shirt bearing the words "Be Happy, Not Gay" if the school cannot not prove wearing such a shirt would cause a substantial disruption.

    Seventh Circuit Court of Appeals panel rules for high school students in free speech case

    Schools can regulate student speech that could reasonably cause substantial disruption of school activities, or the speech could incite a violent response. Recently, a panel for the U.S. Court of Appeals for the Seventh Circuit ruled that a school could not prevent a student from wearing a T-shirt that said “Be Happy, Not Gay.” 

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    Seventh Circuit Court of Appeals panel rules 
for 
high 
school 
students 
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free 
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case March 1, 2011 – The U.S. Court of Appeals for the Seventh Circuit has ruled that high school students have a constitutional right to wear a T-shirt bearing the words “Be Happy, Not Gay” if the school cannot not prove wearing such a shirt would cause a substantial disruption.

    Two students at a Naperville, Illinois public high school requested injunctive relief after a school official inked out a portion of one’s T-shirt bearing the words “Be Happy, Not Gay.”

    One student, Heidi Zamecnik, wore the T-shirt in response to a “Day of Silence” observed by other students advocating tolerance for homosexuality. Another student, Alexander Nuxoll, wanted to wear the T-shirt but feared being punished by school officials.

    On the Day of Silence – promoted annually by the Gay, Lesbian, and Straight Education Network and sponsored by a school club called the Gay/Straight Alliance – students remained silent in class unless called upon or wore T-shirts bearing slogans such as “Be Who You Are.”

    Those particular slogans were not banned, but the school banned Zamecnik’s T-shirt based on a school rule that forbade derogatory comments relating to race, ethnicity, religion, gender, or sexual orientation.

    Nuxoll I 

    The plaintiff-students argued, on free speech grounds, that the school could not ban negative comments about members of a group provided they were not “fighting words” likely to promote a violent reaction or breach of the peace.

    The district court denied the requested preliminary injunction, but the Seventh Circuit Court of Appeals in Nuxoll v. Indian Prairie School District, 523 F.3d 668 (7th Cir. 2008) [Nuxoll I] (opinion by Judge Richard Posner), reversed and held the school could not prevent Nuxoll from wearing the “Be Happy, Not Gay” slogan on his T-shirt during school (Zamecnik graduated).

    That ruling was based on the school district’s inability to prove the T-shirt slogan would cause a substantial disruption at school. As Judge Posner wrote in his opinion, “[s]peculation that it might is, under the ruling precedents, and on the scanty record compiled in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech.”

    However, Posner noted the outcome could change based on a more substantial record after further proceedings. Judge Ilana Rovner wrote a concurring opinion in Nuxoll I, concluding the slogan, though disparaging, was “not the kind of speech that would materially and substantially interfere with school activities."

    On remand, the district court ordered a permanent injunction allowing any future student to bear the “Be Happy, Not Gay” slogan on any piece of clothing or personal item. The district court also granted summary judgment to the plaintiffs, Nuxoll and Zamecnik, awarding each of $25 in damages for infringement of their constitutional rights.

    Nuxoll II 

    The school district appealed, arguing that summary judgment was inappropriate because the school reasonably believed the plaintiff’s T-shirt slogan would cause a substantial disruption.

    In Nuxoll v. Indian Prairie School District et al., Nos. 10-2484 & 10-3635 (March 1, 2011), the same Seventh Circuit Court of Appeals panel that heard Nuxoll I ruled that summary judgment in favor of Nuxoll and Zamecnik was appropriate because the school did not meet its burden of proving the slogan would cause substantial disruption in school.

    The appeals panel – in an opinion written by Judge Posner – agreed that school authorities are entitled to use discretion in determining “when student speech crosses the line between hurt feelings and substantial disruption,” but noted that protection of “hurt feelings” is not a defense to infringement of free speech rights.

    In trying to meet its burden to prove that wearing a T-shirt with the slogan “Be Happy, Not Gay” would substantially disrupt school activities, the school district relied on incidents of harassment of homosexual students, incidents of harassment of Zamecnik, and expert testimony from a PH.D in sociology and professor of family and consumer sciences.

    The appeals paneled dismissed prior incidents as negligible and unreliable, and dismissed evidence that other students harassed Zamecnik as barred by the “heckler’s veto.”

    “Statements that while not fighting words are met by violence or threats or other unprivileged retaliatory conduct by persons offended by them cannot lawfully be suppressed because of that conduct,” Judge Posner explained.

    Posner also noted that anger towards Zamecnik – as evidenced by a Facebook group called “Be Happy, Not Heidi” – began as a result of the lawsuit, not when she wore the T-shirt.

    The panel also concluded that the expert was qualified to give an opinion relating to the attitudes and behavior of teenagers, but the opinions were not based on any reliable principles, methods, or data.

    Thus, the court concluded that it was not error for the district court to grant summary judgment in favor of the students for infringement of their free speech rights.