Students entitled to permanent injunction protecting free speech rights to wear “Be Happy, Not Gay” t-shirts

Zamecnik v. Indian Prairie Sch. Dist. #204, Nos. 10-2485/10-3635 (7th Cir. Mar. 1, 2011)

Abstract: A three-judge panel of the U.S Court of Appeals for the Seventh Circuit (IL, IN, WI) has ruled that students are entitled to a permanent injunction prohibiting a school district from banning them from wearing clothing at school displaying the message “Be Happy, Not Gay,” plus nominal damages. The panel concluded that the evidence presented by the school district was insufficient to satisfy the Tinker substantial disruption standard.  It found the evidence of past disruption, prior to the wearing of the “Be Happy, Not Gay,” negligible. It also found that some of the evidence was barred by the doctrine of “heckler’s veto,” because it used speech that contained no fighting words, which would not have moved a reasonable person to a violent response, to justify banning the speech. Lastly, it concluded that the expert’s report failed to meet the requirements of the federal rules of evidence for such reports.

Facts/Issues: Heidi Zamecnik and Alexander Nuxoll, students at Neuqua Valley High School, were prohibited from wearing t-shirts displaying the message “Be Happy, Not Gay,” which school officials characterized as an offensive interference with the rights of other students that presented a risk of disruption. The students 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 homosexuals. They filed suit in an Illinois federal district court against Indian Prairie School District No. 204 (IPSD) , alleging that their free speech right to express their religious views and their right to free exercise of religion were violated. They also argued that the school board policy underlying the ban was unconstitutionally overbroad and vague and constituted an impermissible “prior restraint.” The district court denied the students’ motion for a preliminary injunction to force the district to allow the shirts.

The  same Seventh Circuit panel that heard the present appeal reversed the district court’s denial of a preliminary injunction and ordered that IPSD be compelled to allow a high school student to wear the t-shirt for the “Day of Truth” event. The court did not, however, 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. On remand, the district court granted summary judgment in favor of the students. It issued a permanent injunction, which was broadened to allow display of the slogan on other clothing, and awarded the students nominal damages.

On appeal, IPSD argued: (1) the case was moot because both students had graduated; (2) the ban on the shirts was justified as a foreseeable “substantial disruption” under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969); and (3) the award of nominal damages was not justified.

Ruling/Rationale: The Seventh Circuit panel affirmed the lower court’s decision. It disposed of the question of mootness, pointing out, “the permanent injunction runs in favor of any student at the high school,” not just the students who brought the suit. It was not unlikely “that one or more of its 4,000-plus students may someday want to display the slogan.”

It then turned to question of whether IPSD’s evidence was sufficient to satisfy Tinker’s substantial disruption standard. The panel stated that IPSD had presented three types of evidence: (1) incidents of harassment of homosexual students; (2) incidents of harassment of Zamecnik, one of the plaintiffs; and (3) the report of an expert which concluded that the slogan “Be Happy, Not Gay” was “particularly insidious.”

The panel found that the first type of evidence was negligible, consisting of a a handful of incidents that occurred prior to the “Be Happy, Not Gay, shirt being worn.  Details of incidents could not be confirmed, and for this reason no students were disciplined.

As to the second type of evidence, the panel determined its introduction into evidence was barred based on the doctrine of “heckler’s veto.” Specifically, it found that the speech in question did not constitute fighting words and “no reasonable person would have been moved to a riotous response.”  “So the fact that homosexual students and their sympathizers harassed Zamecnik because of their disapproval of her message is not a permissible ground for banning it.” The panel acknowledged that schools, based on the paternalistic character of their responsibilities to students, have a duty to protect students from serious disruption of their studies occasioned by offensive speech. In the present case, however, the disruption, if any, was caused not be the speech itself but by the Zamecnik filing the lawsuit to assert her free speech rights.

The panel next concluded that the expert’s report failed to pass muster under the federal rules of evidence requirements that: “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Lastly, it found the award of nominal damages, $25, was justified because “Zamecnik’s shirt was defaced and Nuxoll’s desire to wear the T-shirt on multiple occasions in 2007 was thwarted by fear of punishment.”

Zamecnik v. Indian Prairie Sch. Dist. #204, Nos. 10-2485/10-3635 (7th Cir. Mar. 1, 2011)

[Editor’s Note:  Judge Richard Posner, who wrote the Zamechik opinion, is a renowned legal scholar and theorist, and always a good read.

A summary of the Seventh Circuit panel’s previous opinion is available at the first link below. While Judge Posner in both the prior and current opinion expressed sympathy for students vulnerable to harassment based on sexual orientation, he stressed that school officials can not ban a student’s speech simply because it  hurts other students’ feelings. There is no “generalized ‘hurt feelings’ defense to a high school’s violation of the First Amendment rights of its students,” he explained. Then-Judge Samuel Alito expressed a similar opinion when he wrote for the Third Circuit: “[T]here is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs.” Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001).

In February 2011, a federal district court in California ruled that students who were prohibited by their high school’s former assistant principal and principal from wearing American flag T-shirts on Cinco de Mayo day may proceed with their suit against the school district and the two former high school administrators in their individual capacities. A summary of that opinion is available at the second link below.]

NSBA School Law Issues on Nuxoll v. IPSD

NSBA Legal Clips archives on Dariano v. MHUSD

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