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A federal appeals court has ordered an Illinois school district to allow a student to wear a T-shirt proclaiming 鈥淏e Happy, Not Gay鈥� to protest a high school event meant to promote tolerance of gay students.
A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, on April 23 that the student was entitled to a narrow injunction allowing that specific message, because school officials had stretched the district鈥檚 policy against derogatory comments 鈥渢oo far鈥� by forcing the deletion of 鈥淣ot Gay鈥� from such a shirt in a previous skirmish over the event called the Day of Silence.
鈥� 鈥楤e Happy, Not Gay鈥� is only tepidly negative; 鈥榙erogatory鈥� or 鈥榙emeaning鈥� seems too strong a characterization,鈥� Judge Richard A. Posner said in an opinion for himself and another judge on the panel.
The ruling was timed to allow Alexander Nuxoll, a sophomore at Nequa Valley High School in Naperville, Ill., to wear the shirt during an event called the , which is promoted by the Alliance Defense Fund, a religious-freedom group, as a response to the Day of Silence.
, promoted by the Gay, Lesbian, and Straight Education Network, or GLSEN, was scheduled for Friday, April 25, while the Day of Truth was being promoted by the ADF for Monday, April 28. The Day of Silence and various responses to it have been a source of controversy in some schools. (鈥溾�楧ay of Silence鈥� in 69传媒 Brings Unity, Controversy,鈥� April 23, 2008.)
Youth Vanguard
In his opinion, Judge Posner weighed the concerns of school administrators in the 29,000-student Indian Prairie School District No. 204, who say they seek to maintain an orderly learning environment free of disparaging messages, against the free-speech rights of students to object to the Day of Silence.
鈥淥n the one hand, judges are incompetent to tell school authorities how to run schools in a way that will preserve an atmosphere that is conducive to learning,鈥� the judge said. But he took exception to the school district鈥檚 argument that it was seeking to protect the rights of students against whom derogatory comments were directed.
鈥淧eople do not have a legal right to prevent criticism of their beliefs or, for that matter, their way of life,鈥� the judge said.
Still, the injunction applied only to the 鈥淏e Happy, Not Gay鈥� T-shirt, and did not broadly strike down the school district鈥檚 speech regulations. Nor did it give Mr. Nuxoll any guidance on the legality of stronger anti-gay messages he has suggested he might wish to convey in school.
Judge Posner鈥檚 suggestion in his opinion that high school students could make only a 鈥渕odest鈥� contribution to the marketplace of ideas drew a rebuke from U.S. Circuit Judge Ilana Rovner.
Judge Rovner, who also voted to grant the injunction, said in a concurring opinion that 鈥測outh are often the vanguard of social change鈥� and 鈥渁re leading a broad, societal change in attitude towards homosexuals.鈥�
鈥淭o treat them as children in need of protection from controversy, to blithely dismiss their views as less valuable than those of adults, is contrary to the values of the First Amendment,鈥� Judge Rovner said.
Lawyers React
Jonathan A. Scruggs, an ADF lawyer who represents the student, acknowledged that the injunction was limited in scope, but he said Judge Posner鈥檚 opinion 鈥渋s going to prevent school officials from using some of these fallacious arguments to suppress speech that they deem offensive.鈥�
鈥淭his has major implications,鈥� Mr. Scruggs added.
John F. Canna, a lawyer representing the Indian Prairie school district, said he had discussed with district and school administrators the possibility that Mr. Nuxoll would win an injunction.
鈥淲e鈥檙e disappointed in the specific ruling on the T-shirt,鈥� Mr. Canna said. 鈥淭he school administration felt the T-shirt was derogatory. On the other hand, we were pleased with much of what the majority determined.鈥�
He noted that after this year鈥檚 Day of Silence and Day of Truth pass, the lawsuit will return to federal district court for further proceedings that go beyond the injunction sought for this year.
鈥淲e鈥檙e looking forward to being able to introduce evidence as to what was behind the policy鈥� curtailing derogatory speech, Mr. Canna said. 鈥淭his isn鈥檛 the end of this.鈥�
Adam Schwartz, a lawyer with the American Civil Liberties Union of Illinois, applauded the ruling, saying it was consistent with free speech protections guaranteed to high school students under the U.S. Supreme Court鈥檚 1969 ruling in Tinker v. Des Moines Independent Community School District.
鈥淭he $64,000 question is whether or not the school district鈥檚 policy [barring all derogatory speech], on its face, is consistent with the First Amendment,鈥� Mr. Schwartz said. 鈥淭hat question was not resolvable on this motion.鈥�
