Suburban Chicago student can wear anti-gay T-shirt to school

Friday, April 25, 2008

CHICAGO — A federal appeals court has ruled that a suburban Chicago student should be allowed to wear an anti-gay T-shirt at his high school — a decision the teen's attorneys describe as a victory for First Amendment rights.

In granting a preliminary injunction, the 7th U.S. Circuit Court of Appeals instructed the district court to order the Neuqua Valley High School to suspend its ban on the “Be Happy, Not Gay” T-shirt while a civil rights lawsuit in the case proceeds.

Neuqua sophomore Alexander Nuxoll was banned from wearing the shirt to school, and he and one-time student Heidi Zamecnik, who wore a similar T-shirt to school in 2006, filed a lawsuit saying their free-speech rights had been violated.

Indian Prairie Unit District 204 later said the students would be allowed to wear a T-shirt that read “Be Happy, Be Straight,” but the students refused. Last year, a federal judge ruled against them.

The Alliance Defense Fund, a Christian litigation group representing the students, hailed the 7th Circuit panel’s April 23 order in Nuxoll v. Indian Prairie School Dist. #204

“The court's ruling is a victory for all students seeking to protect their First Amendment rights on a school campus,” ADF attorney Nate Kellum said yesterday. “Public school officials cannot censor a message expressing one viewpoint on homosexual behavior and then at the same time allow messages that express another viewpoint.”

A spokeswoman for the school district did not return a message seeking comment in time for this story.

But an attorney for the district, Jack Canna, told the Arlington Heights Daily Herald that administrators were disappointed the T-shirt message would be permitted.

“We respect the very narrow ruling by the court and are prepared to let (Nuxoll wear the shirt),” Canna said. “This isn't all bad in that the ruling is specifically limited to that phrase but it doesn't allow other derogatory speech. That's pretty important.”

The school district had argued the T-shirts are derogatory and cause disruptions to students' education.

But the three-judge appeals panel, which heard arguments from attorneys in Nuxoll's case, said it could not accept claims that the school acted properly on grounds it was protecting the rights of the students against whom derogatory comments were directed.

“Of course a school can — often it must — protect students from the invasion of their legal rights by other students,” Judge Richard Posner wrote in the opinion. “But people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life.”

Judge Ilana Kara Diamond Rovner wrote a separate concurrence that went further than Posner’s majority opinion. “I view this as a simple case,” Rovner wrote. “We are bound by the rule of Tinker v. [Des Moines Independent Community School Dist.], a case that the majority portrays in such a convoluted fashion that the discussion folds in on itself like a Möbius strip.”

She added: “Open debate is the very value preserved by the First Amendment and yet the majority reduces it to stealth viewpoint discrimination.”

Both sides pushed for a decision before today’s National Day of Silence, when students take a vow of silence to protest bullying, harassment and discrimination in schools, and the National Day of Truth on April 28, when Nuxoll wanted to wear the “Be Happy, Not Gay” shirt.

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