Zamecnik v. Indian Prairie Sch. Dist. # 204

• Decision Date: 01 March 2011
• Docket Number: Nos. 10–2485,10–3635.,s. 10–2485
• Parties: Heidi ZAMECNIK and Alexander Nuxoll, Plaintiffs–Appellees,v.INDIAN PRAIRIE SCHOOL DISTRICT # 204, et al., Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

636 F.3d 874

266 Ed. Law Rep. 62

84 Fed. R. Evid. Serv. 1094

Heidi ZAMECNIK and Alexander Nuxoll, Plaintiffs–Appellees,

v.INDIAN PRAIRIE SCHOOL DISTRICT # 204, et al., Defendants–Appellants.

Nos. 10–2485

10–3635.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 19, 2011.Decided March 1, 2011.

Nathan W. Kellum, Jonathan A. Scruggs (argued), Attorneys, Alliance Defense Fund, Memphis, TN, for Plaintiffs–Appellees.Thomas J. Canna (argued), Attorney, Canna & Canna, Orland Park, IL, for Defendants–Appellants.Before POSNER, KANNE, and ROVNER, Circuit Judges.POSNER, Circuit Judge.

These consolidated appeals (functionally one appeal, and we'll treat them as such) are a sequel to an appeal we decided almost three years ago, Nuxoll v. Indian Prairie School Dist. # 204, 523 F.3d 668 (7th Cir.2008). The plaintiffs, two students at Neuqua Valley High School, a large public high school in Naperville, Illinois, had sued the school district (and school officials, whom we can ignore—we'll call the defendants, collectively, “the school”) for infringing their right of free speech by forbidding them to make a specific negative statement about homosexuality. They moved for a preliminary injunction, which the district judge denied. They appealed, and we reversed, directing the district judge to enter forthwith a preliminary injunction that would permit plaintiff Nuxoll (Zamecnik having graduated) to wear during school hours a T-shirt that recites “Be Happy, Not Gay.” Nuxoll's right to wear it outside of school is not questioned.

A private group called the Gay, Lesbian, and Straight Education Network promotes an annual event called the Day of Silence that is intended to draw critical attention to harassment of homosexuals; the idea behind the name is that homosexuals are silenced by harassment and other discrimination. Students participate in the Day of Silence by remaining silent throughout the day except when called upon in class, though some teachers, as part of their own observance of the Day of Silence, will not call on students that day. Some students and faculty wear T-shirts on the Day of Silence that display slogans such as “Be Who You Are.” None of the slogans criticizes heterosexuality or advocates homosexuality, though “Be Who You Are” carries the suggestion that persons who are homosexual should not be ashamed of the fact or try to change it.

The plaintiffs, who disapprove of homosexuality on religious grounds, participated (we use the past tense because both have now graduated) with other like-minded students in a Day of Truth held on the first school day after the Day of Silence. Plaintiff Zamecnik wore a shirt that read “ My Day of Silence, Straight Alliance” on the front and “Be Happy, Not Gay” on the back. A school official inked out the phrase “Not Gay” and has banned display of the slogan as a violation of a school rule forbidding “derogatory comments,” spoken or written, “that refer to race, ethnicity, religion, gender, sexual orientation, or disability” (emphasis added). He did not object to the slogan on the front of the shirt.

The plaintiffs assert a constitutional right to make negative statements about members of any group provided the statements are not inflammatory—that is, are not “fighting words,” which means speech likely to provoke a violent response amounting to a breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 572–73, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). They concede that they could not inscribe “homosexuals go to Hell” on their T-shirts because those are fighting words, at least in a high-school setting, and so could be prohibited despite the fact that they are speech, disseminating an opinion. R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).

When last this case was here, we expressed (and we repeat our expression of) sympathy (thought excessive by Judge Rovner in her concurring opinion, 523 F.3d at 676–80) for an expansive interpretation of the “fighting words” doctrine when the speech in question is that of students. We noted that the contribution that kids can make to the marketplace of ideas and opinions is modest (Judge Rovner disagreed) and we emphasized (overemphasized, in her view) a school's countervailing interest in protecting its students from offensive speech by their classmates that would interfere with the learning process—though we added that because 18–year–olds can now vote, high-school students should not be “raised in an intellectual bubble,” American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572, 577 (7th Cir.2001), which would be the tendency of forbidding all discussion of public issues by such students during school hours. (Hence the younger the children, the more latitude the school authorities have in limiting expression. Muller ex rel. Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1538–39 (7th Cir.1996).)

Thus a school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality. The school argued (and still argues) that banning “Be Happy, Not Gay” was just a matter of protecting the “rights” of the students against whom derogatory comments are directed. But people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life. R.A.V. v. City of St. Paul, supra, 505 U.S. at 394, 112 S.Ct. 2538; Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). Although tolerance of homosexuality has grown, gay marriage remains highly controversial. Today's high school students may soon find themselves, as voters, asked to vote on whether to approve gay marriage, or to vote for candidates who approve of it, or ones who disapprove.

In asking for a preliminary injunction Nuxoll acknowledged that “Be Happy, Not Gay” was one of the “negative comments” about homosexuality that he thought himself entitled to make. But we said that unlike “homosexuals go to Hell,” which he concedes are “fighting words” in the context of a school (and unlike “I will not accept what God has condemned” and “homosexuality is shameful”—terms held, perhaps questionably—unless euphemism is to be the only permitted mode of expressing a controversial opinion—to be fighting words in Harper v. Poway Unified School District, 445 F.3d 1166, 1171 (9th Cir.2006), vacated as moot, 549 U.S. 1262, 127 S.Ct. 1484, 167 L.Ed.2d 225 (2007)), “Be Happy, Not Gay” is not an instance of fighting words. To justify prohibiting their display the school would have to present “facts which might reasonably lead school officials to forecast substantial disruption.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); see Boucher v. School Board of School District of Greenfield, 134 F.3d 821, 827–28 (7th Cir.1998); Walker–Serrano ex rel. Walker v. Leonard, supra, 325 F.3d 412, 416 (3d Cir.2003); LaVine v. Blaine School District, 257 F.3d 981, 989 (9th Cir.2001). Such facts might include a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school—but the school had presented no such facts in response to the motion for a preliminary injunction.

In this factual vacuum, we described “Be Happy, Not Gay” as “only tepidly negative,” saying that “derogatory” or “demeaning” seemed too strong a characterization. 523 F.3d at 676. As one would expect in a high school of more than 4,000 students, there had been incidents of harassment of homosexual students. But we thought it speculative that allowing the plaintiff to wear a T-shirt that said “Be Happy, Not Gay” “would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student's free speech.” Id.

Not that Tinker's “substantial disruption” test has proved a model of clarity in its application. The cases have tended to rely on judicial intuition rather than on data, and the intuitions are sometimes out of date. For example, although it's been ruled that “lewd, vulgar, obscene, or plainly offensive speech” can be banned from a school, Canady v. Bossier Parish School Bd., 240 F.3d 437, 442 (5th Cir.2001), the authority for the ruling— Bethel School District No. 403 v. Fraser, 478 U.S. 675, 680–82, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)—involved student speech that, from the perspective enabled by 25 years of erosion of refinement in the use of language, seems distinctly lacking in shock value (e.g., “I know a man who is firm—he's firm in his pants, he's firm in his shirt, his character is firm—but most ... of all, his belief in you, the students of Bethel, is firm,” id. at 687, 106 S.Ct. 3159 (concurring opinion)). An example of school censorship that courts have authorized on firmer grounds is forbidding display of the Confederate flag, as in Defoe ex rel. Defoe v. Spiva, 625 F.3d 324, 333–36 and n. 6 (6th Cir.2010); Scott v. School Board of Alachua County, 324 F.3d 1246, 1248–49 (11th Cir.2003) (per curiam), and West v. Derby Unified School District No. 260, 206 F.3d 1358, 1361, 1365–66 (10th Cir.2000)—cases in which serious racial tension had led to outbursts of violence even before the display of the flag, which is widely regarded as racist and incendiary. Boroff v. Van Wert City Board of Education, 220 F.3d 465, 467, 469–71 (6th Cir.2000), involved T-shirts that depicted a three-faced Jesus, accompanied by the words “See No Truth. Hear No Truth. Speak No Truth” and advocated, albeit obliquely, the use of illegal drugs, a form of advocacy in the school setting that can be prohibited without evidence of disruption. Morse v. Frederick, 551 U.S. 393, 406–10, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007).

These cases, more extreme than ours, do not establish a...