Zamecnik v. Indian Prairie School Dist. No. 204

• Decision Date: 21 December 2007
• Docket Number: No. 07 C 1586.,07 C 1586.
• Citation: 619 F.Supp.2d 517
• Parties: Heidi ZAMECNIK and Alexander Nuxoll, a minor, by and through his parents, Michael and Penny Nuxoll, Plaintiffs, v. INDIAN PRAIRIE SCHOOL DISTRICT #204 BOARD OF EDUCATION, Howard Crouse, in his official capacity as Superintendent of Indian Prairie School District #204, Michael Popp, in his official capacity as Principal of Neuqua Valley High School, and Bryan Wells, individually and in his official capacity as Dean of Students Neuqua Valley High School, Defendants.
• Court: U.S. District Court — Northern District of Illinois

619 F.Supp.2d 517

Heidi ZAMECNIK and Alexander Nuxoll, a minor, by and through his parents, Michael and Penny Nuxoll, Plaintiffs, v. INDIAN PRAIRIE SCHOOL DISTRICT #204 BOARD OF EDUCATION, Howard Crouse, in his official capacity as Superintendent of Indian Prairie School District #204, Michael Popp, in his official capacity as Principal of Neuqua Valley High School, and Bryan Wells, individually and in his official capacity as Dean of Students Neuqua Valley High School, Defendants.

No. 07 C 1586.

United States District Court, N.D. Illinois, Eastern Division.

December 21, 2007.

COPYRIGHT MATERIAL OMITTED

Nathan W. Kellum, Jonathan A. Scruggs, Alliance Defense Fund, Memphis, TN, Agnes E. Grossman, Law Office of Richard D. Grossman, Chicago, IL, for Plaintiffs.

John F. Canna, Thomas J. Canna, Dawn Marie Hinkle, Todd Harold Fox, Canna and Canna, Ltd., Orland Park, IL, for Defendants.

OPINION AND ORDER

WILLIAM T. HART, District Judge.

Alexander Nuxoll and Heidi Zamecnik¹ are, respectively, a current and former student at Neuqua Valley High School ("NVHS"), which is part of Indian Prairie School District No. 204. The high school is located in Naperville, Illinois, one of Chicago's most populous suburbs, and has approximately 4200 students, including a variety of races, religions, ethnic backgrounds, and sexual orientations. Zamecnik graduated in June 2007 and Nuxoll is currently a sophomore. The Board of Education of District 204, the District's Superintendent, NVHS's Principal, and NVHS's Dean of Students are named as defendants. The Superintendent and Principal are each named in his official capacity only and the Dean is named in both his official and individual capacities.

On a single date in mid-April of each year since 2003, the Gay/Straight Alliance ("GSA") student group at NVHS has had activities at the school for a "Day of Silence." In 2007, the Day of Silence was April 18 and it is expected that the same type of activities will occur in April 2008. This is a day intended to protest anti-gay discrimination and express support for tolerance of gays. It is part of a national event sponsored by the Gay, Lesbian and Straight Education Network. Zamecnik was at school for Days of Silence in each of her four years of high school and Nuxoll was at the school for the 2007 Day of Silence during his freshman year. On the Day of Silence, some students wear labels identifying them as Day of Silence Participants. They generally remain silent during the day, but may be required to speak in classes or when a spoken response is deemed necessary by a school staff member. Many students and some staff members wear shirts during the day expressing their support for GSA. In 2006, this shirt included the phrase "Be Who You Are."

Plaintiffs profess sincere Christian religious beliefs which condemn homosexual behavior as immoral. They also believe that homosexual behavior is damaging to persons as well as to society in general. In past years, the Alliance Defense Fund ("ADF") has promoted an event called the "Day of Truth" for the day after the Day of Silence. ADF promotes wearing a shirt that has the ADF logo and "day of truth" on the front and "The Truth cannot be silenced" and the Day of Truth organization's website address on the back.

The case is now before the court on the motions of Nuxoll to amend the complaint and for preliminary injunction. Also, defendant Bryan Wells has moved for summary judgment based on a claim of qualified immunity.

I. HISTORY OF THE PROCEEDINGS

In 2006, Zamecnik remained silent on the day after the Day of Truth. She also wore a t-shirt that had "Be Happy, Not Gay" on the back. School officials, however, required that she cross off "Not Gay." Zamecnik seeks nominal damages regarding the 2006 events.

This lawsuit was filed on March 21, 2007 and a motion for a preliminary injunction seeking relief related to the 2007 Day of Truth was presented just fifteen days prior to the Day of Truth. In response to the motion, defendants represented that they would permit plaintiffs to be silent on the Day of Truth in the same manner that students were silent on the Day of Silence, Defendants also represented that they would permit plaintiffs to display or wear buttons, stickers, and t-shirts promoted by ADF for the Day of Truth as well as items including messages such as "Be Happy, Be Straight" or "Straight Alliance." Defendants, however, would not voluntarily permit negative statements that are derogatory of homosexuals. In order to obtain a preliminary injunction ruling prior to the 2007 Day of Truth, the parties agreed to present the preliminary injunction motion on written submissions. See Zamecnik ex rel, Zamecnik v. Indian Prairie School District No. 204 Board of Education, 2007 WL 1141597 *2 (N.D.Ill., April 17, 2007) ("Zamecnik I"). The narrow issue for ruling was whether, regarding the 2007 Day of Truth, "plaintiffs [were] entitled to a preliminary injunction prohibiting defendants from forbidding that they display, while in school, the message `Not Gay' as part of the phrase `Be Happy, Not Gay.'" Id.

On the day before the Day of Silence, plaintiffs' preliminary injunction motion was denied. See id. Based on Seventh Circuit case law, it was held that defendants could take into consideration the school's pedagogical mission to promote tolerance of differences among students when deciding to prohibit speech derogatory of homosexual conduct. See id. at *6-10. It was held permissible to impose content-based restrictions on expression that was fundamentally inconsistent with the school's basic educational mission, id. at *10, even though such restrictions could not be constitutionally imposed by a governmental entity outside the context of a public high school, id. at *11. It was further held that there was no equal protection violation based on viewpoint discrimination. Id. at *12. Minimally supported contentions regarding a "hybrid" free exercise of religion/free speech claim were held to be insufficiently meritorious to support a preliminary injunction. Id. Because the narrow speech restrictions that were to be imposed were reasonable, it was unnecessary to otherwise address whether a written board policy was a vague and overbroad restriction on speech. Id. It was concluded that plaintiffs had a low likelihood of success on the merits and the balancing of potential harms went against granting a preliminary injunction. Id. at *11.

Plaintiffs thereafter appealed the denial of the preliminary injunction. The Seventh Circuit dismissed the appeal as moot, finding that the motion presented in the district court was limited to activity planned for the 2007 Day of Truth which had already occurred prior to an appeal being filed. See Zamecnik ex rel. Zamecnik v. Indian Prairie School District #204, Board of Education, No. 07 C 1586 (7th Cir. Aug. 7, 2007) (unpublished order) ("Zamecnik II").

Shortly after the appeal was dismissed, Nuxoll filed the pending motion for a preliminary injunction. Having already graduated, Zamecnik is not a party to the new preliminary injunction motion. Nuxoll's present motion is not limited to activity during the 2008 and future Days of Truth. He seeks an injunction that would allow him to present his views opposing homosexuality throughout the school year. At the time the motion was presented, defendants objected that the pending complaint was limited to activity on the Day of Truth. Rather than contest that objection, plaintiffs have moved to amend their complaint to make clear that Nuxoll's claim for injunctive relief is not limited to activities on the Day of Truth.

II. MOTION TO AMEND THE COMPLAINT

Defendants oppose granting leave to amend. They contend that allowing plaintiffs to amend would mean that plaintiffs misled the court into promptly ruling on the first preliminary injunction motion based on the urgency of the upcoming Day of Truth. That is not a basis for denying leave to amend. Even if Nuxoll desires to express his views throughout the year, the Day of Truth would still be a day on which he has a special reason for wanting to speak. There would still have been an urgency to rule by then. Defendants' other objection is that the amendment would be futile. Defendants contend Nuxoll has not been prevented from speaking in the manner that he contends has been suppressed so there can be no basis for an injunction. The court declines resolving such factual issues on a motion for leave to amend. Leave to file the amended complaint will be granted.

III. NUXOLL'S MOTION FOR A PRELIMINARY INJUNCTION

Nuxoll does not request a hearing in support of his preliminary injunction motion. He relies on the written submissions that were presented in support of his original motion. The only additional submission is a second affidavit of Nuxoll dated August 23, 2007. In response, defendants do not submit any additional affidavits or other evidentiary support. Ordinarily, when material factual issues are in dispute, a motion for preliminary injunction should not be resolved, particularly in favor of granting relief, without first providing an opportunity for the presentation of live testimony. See United States v. Board of Education of City of Chicago, 11 F.3d 668, 672 (7th Cir.1993); Zamecnik I, 2007 WL 1141597 at *2; Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure Civil 2d § 2949 at 222-30 (1995). However, the parties can agree to have any factual disputes regarding a preliminary injunction motion resolved on written submissions. See id. at 230. Also, if the written submissions indicate there is no material factual dispute, the motion can be resolved on the written submissions. Id. at 221-22. In making factual determinations for preliminary relief, the court is not limited to evidence that would be admissible at trial nor are the affidavits required to comport with the stricter rules applicable to summary judgment affidavits. See id....