Nuxoll v. Indian Prairie Sch. Dist. #204, No. 08-1050 (7th Cir. Apr. 23, 2008)
The U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) has reversed a federal district court’s denial of a preliminary injunction and ordered that an Illinois school district be compelled to allow a high school student to wear a T-shirt in school bearing the legend “Be Happy, Not Gay” for a “Day of Truth” event. However, the court declined to require an injunction more broadly against the school board rule prohibiting “derogatory comments, oral or written, that refer to race, ethnicity, religion, gender, sexual orientation, or disability” or to ensure that the students could make other comments, instead focusing only on the application of the rule in this instance. Even as to that aspect, the court cautioned that upon further development of the factual record in the lower court, “the case may cast the issue in a different light.” Heidi Zamecnik and Alexander Nuxoll, students at Neuqua Valley High School, were prohibited from wearing T-shirts, which school officials likened to "Be Happy, Not Christian" and characterized as an offensive interference with the rights of other students and a risk of disruption. Heidi and Alexander had planned to wear the shirts during the "Day of Truth," an event promoted by the Alliance Defense Fund as a counter-demonstration to the Gay, Lesbian, and Straight Education Network’s annual "Day of Silence," which promotes tolerance of gays. They sued Indian Prairie School District No. 204, alleging that their free speech right to express their religious views and their right to free exercise of religion were violated. They also argued the school board policy underlying the ban was unconstitutionally overbroad and vague and constituted an impermissible "prior restraint." A prior restraint is a government restriction on speech in advance, as opposed to an action taken in response to the speech. The district court declined to issue a preliminary order to force the district to allow the shirts.
On appeal, three-judge panel unanimously concluded that the school’s actions could not be justified as a foreseeable “substantial disruption” under Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508 (1969). The court made clear that its ruling was strictly limited to the student’s “as applied” challenge to the rule and did not touch upon the challenge to the rule itself. After first noting that U.S. Supreme Court precedent places “fighting words” clearly outside First Amendment protection and applauding the students’ concession on that point in light of the court’s belief that “[a] heavy federal constitutional hand on the regulation of student speech by school authorities would make little sense,” the court acknowledged that high school students should not be shielded from the real world, “which would be the effect of forbidding all discussion of public issues by such students.” However, in this case the school’s rule was not attempting to foreclose all discussion, but rather to prohibit only “(1) derogatory comments on (2) unalterable or otherwise deeply rooted personal characteristics about which most people, including—perhaps especially including—adolescent schoolchildren, are highly sensitive.”
Nonetheless, the court rejected the school district’s argument that the rule was valid “because all it does is protect the ‘rights’ of the students against whom derogatory comments are directed.” The court pointed out that “people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life.” The school district’ stronger argument was that the rule “strikes a reasonable balance between the competing interests—free speech and ordered learning—at stake in the case.” While the court recognized that student speech is governed, with some exceptions, by the Tinker substantial disruption standard, it concluded that school meets that standard by presenting “facts which might reasonably lead school officials to forecast substantial disruption.” Avoiding violence is not the only type of substantial disturbance, the court noted, drawing on the Supreme Court’s more recent student speech cases to infer that “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 of a sick school—symptoms therefore of substantial disruption—the school can forbid the speech.” Conceding that the school rule probably would not pass constitutional muster if applied outside the school environment or interpreted to cover any comment that could be construed as critical of one of the protected groups, the court nonetheless pointed out that school officials have a relationship to students that involves protecting them from harassment. Given that protective responsibility, the court expressed concern that “if the rule is invalidated the school will be placed on a razor's edge, where if it bans offensive comments it is sued for violating free speech and if it fails to protect students from offensive comments by other students it is sued for violating laws against harassment.” Finding the slogan “Be Happy, Not Gay” to be only "tepidly negative" rather than "derogatory" or “demeaning,” the court found the record in the case too “scanty” to justify the application of the valid school rule to that particular legend.
Nuxoll v. Indian Prairie Sch. Dist. #204, No. 08-1050 (7th Cir. Apr. 23, 2008)
[Legal Clips Editor’s Note: The majority opinion was by Judge Richard Posner, a conservative luminary. The concurring opinion by Judge Ilana Rovner sharply disputed the majority’s approach to Tinker. Background on the case, with links to amicus briefs by the Illinois Association of School Boards and the Illinois ACLU and a summary of the district court ruling, is below. In February a U.S. district court California upheld its previous ruling that a school district’s refusal to allow a student to wear a T-shirt expressing religious objection to homosexuality did not violate the student’s free speech and free exercise of religion rights. That opinion is summarized at the second link.]
NSBA School Law pages on oral arguments
NSBA School Law pages on Harper v. Poway Unified Sch. Dist.