Nuxoll Ex Rel. Nuxoll v. Indian Prairie Sch. Dist. , 523 F.3d 668 ( 2008 )

POSNER, Circuit Judge.

The plaintiff, a sophomore at Neuqua Valley High School, a large public high school in Naperville, Illinois, has brought suit against the school district and school officials contending that they are violating his right to free speech by forbidding him to make negative comments at school about homosexuality. He moved for a preliminary injunction, which was denied, and he appeals the denial. The parties tacitly agree that he is entitled to a preliminary injunction if he has shown a reasonable probability that his right to free speech is being violated. The Supreme Court believes that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion); see also Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir.2006); Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998); Tunick v. Safir, 209 F.3d 67, 70 (2d Cir.2000). The school has not tried to show that the grant of a preliminary injunction, at least if narrowly drafted, would cause irreparable harm to it. So the balance of harms inclines toward the plaintiff, and therefore the school can prevail only if his claim is demonstrably weak.

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 attention to harassment of homosexuals. See www. dayofsilence.org (visited Apr. 5, 2008). The idea behind the name is that homosexuals are silenced by harassment and other discrimination. The goal of the “Day of Silence” is not to advocate homosexuality but to advocate tolerance for homosexuals. A student club at Neuqua Valley High School called the Gay/Straight Alliance sponsors the “Day of Silence” at the school. Students participate 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 participating in the observance. Some students and faculty wear T-shirts that day with legends such as “Be Who You Are.” None of the legends advocates homosexuality or criticizes heterosexuality. Indeed, opposition to harassment of persons who happen to be homosexual is consistent with disapproval of homosexuality itself.

The plaintiff is one of the students who disapprove of homosexuality. Some of them participate in a “Day of Truth” (see www.dayoftruth.org (visited Apr. 5, 2008)) held on the first school day after the “Day of Silence.” They recommend that supporters wear a T-shirt that reads “day of truth” and “The Truth cannot be silenced.” Two years ago a co-plaintiff (who has since graduated and as a result is no longer seeking injunctive relief) 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 had the phrase “Not Gay” inked out. Last year neither plaintiff wore a shirt that contained the phrase, or otherwise tried to counter the Day of Silence, for fear of being disciplined.

None of the slogans mentioned so far has been banned by the school authorities except “Be Happy, Not Gay.” The school bases the ban on a school rule forbidding “derogatory comments,” oral or written, “that refer to race, ethnicity, religion, gender, sexual orientation, or disability.” The school deems “Be Happy, Not Gay” a derogatory comment on a particular sexual orientation. The school’s position is that members of a listed group may comment favorably about their own group but may not make a derogatory comment about another group. The rule does not apply to comments made outside of school.

The plaintiff challenges the rule, as well as its application in this case. He believes that the First Amendment entitles him to make, whether in school or out, any negative comments he wants about the members of a listed group, including homosexuals (a group defined of course by sexual orientation), provided they are not inflammatory words — that is, not “fighting words,” words likely to provoke a violent reaction and hence a breach of the peace. The Supreme Court has placed fighting words outside the protection of the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (Jehovah’s Witness called a government official “a God damned racketeer” and “a damned Fascist”). Although subsequent invocations of the doctrine have failed, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 386, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Texas v. Johnson, 491 U.S. 397, 409-10, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Cohen v. California, 403 U.S. 15, 20-21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Collin v. Smith, 578 F.2d 1197, 1204-05 (7th Cir.1978); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997), the plaintiff concedes its continued validity and further concedes that he could not inscribe “homosexuals go to Hell” on his T-shirt because those are fighting words and so can be prohibited despite their expressive content and arguable theological support. R.A.V. v. City of St. Paul, supra, 505 U.S. at 386, 112 S.Ct. 2538.

The concession is prudent. A heavy federal constitutional hand on the regulation of student speech by school authorities would make little sense. The contribution that kids can make to the marketplace in ideas and opinions is modest and a school’s countervailing interest in protecting its students from offensive speech by their classmates is undeniable. Granted, because 18-year-olds can now vote, high-school students should not be “raised in an intellectual bubble,” as we put it in American Amusement Machine Association v. Kendrick, 244 F.3d 572, 577 (7th Cir.2001), which would be the effect of forbidding all discussion of public issues by such students. But Neuqua Valley High School has not tried to do that. It has prohibited only (1) derogatory comments on (2) unalterable or otherwise deeply rooted personal characteristics about which most people, including — perhaps especially including — adolescent schoolchildren, are highly sensitive. People are easily upset by comments about their race, sex, etc., including their sexual orientation, because for most people these are major components of their personal identity — none more so than a sexual orientation that deviates from the norm. Such comments can strike a person at the core of his being.

There is evidence, though it is suggestive rather than conclusive, that adolescent students subjected to derogatory comments about such characteristics may find it even harder than usual to concentrate on their studies and perform up to the school’s expectations. See David M. Hu-ebner et al., “Experiences of Harassment, Discrimination, and Physical Violence Among Young Gay and Bisexual Men,” 94 Am. J. Public Health 1200-01 (July 2004); Michael Bochenek & A. Widney Brown, Human Rights Watch, “Hatred in the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual, and Transgender Students in U.S. Schools” 1-3 (2001), www.hrw.org/reports/2001/uslgbV toc.htm (visited Apr. 15, 2008); American Association of University Women Educational Foundation, “Hostile Hallways: Bullying, Teasing, and Sexual Harassment in School” 37 (2001), www.aauw.org/ research/upload/hostilehallways.pdf (visited Apr. 14, 2008). Neuqua Valley High School is huge — 4200 students — and the potential for wounding speech concerning the personal characteristics listed in the school’s rule is great. Nor, on the benefits side of the First Amendment balance, is uninhibited high-school student hallway debate over sexuality — whether carried out in the form of dueling T-shirts, dueling banners, dueling pamphlets, annotated Bibles, or soapbox oratory — an essential preparation for the exercise of the franchise.

A judicial policy of hands off (within reason) school regulation of student speech has much to recommend it. On the one hand, judges are incompetent to tell school authorities how to run schools in a way that will preserve an atmosphere conducive to learning; on the other hand the suppression of adolescents’ freedom to debate sexuality is not one of the nation’s pressing problems, or a problem that can be solved by aggressive federal judicial intervention. A far more urgent problem, the high dropout rates in many public schools, United States Department of Education National Center for Education Statistics, “Dropout Rates in the United States: 2005” 3-5 (June 2007), nces. ed.gov/pubs2007/2007059.pdf (visited Apr. 14, 2008), will not be solved by First Amendment free-for-alls, though happily the drop-out rate at Neuqua Valley High School, serving as it does the wealthy city of Naperville, is negligible.

It may not be obvious to an outsider how a T-shirt on which is written the slogan “Be Happy, Not Gay” will poison the school atmosphere, but the outsider is — an outsider. And of course the plaintiff doesn’t want to stop there. He wants to wear T-shirts that make more emphatically negative comments about homosexuality, provided only that the comments do not cross the line that separates nonbelligerent negative comments from fighting words, wherever that line may be. He also wants to distribute Bibles to students to provide documentary support for his views about homosexuality. We foresee a deterioration in the school’s ability to educate its students if negative comments on homosexuality by students like Nuxoll who believe that the Bible is the word of God to be interpreted literally incite negative comments on the Bible by students who believe either that there is no God or that the Bible should be interpreted figuratively. Mutual respect and forbearance enforced by the school may well be essential to the maintenance of a minimally decorous atmosphere for learning.

But we cannot accept the defendants’ argument that the rule is valid because all it does is protect the “rights” of the students against whom derogatory comments are directed. Of course a school can— often it must — protect students from the invasion of their legal rights by other students. But people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life. R.A.V. v. City of St. Paul, supra, 505 U.S. at 394; Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). There is no indication that the negative comments that the plaintiff wants to make about homosexuals or homosexuality names or otherwise targets an individual or is defamatory. Anyway, though Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952), has never been overruled, no one thinks the First Amendment would today be interpreted to allow group defamation to be prohibited. American Booksellers Ass’n v. Hudnut, 771 F.2d 323, 331 n. 3 (7th Cir.1985), aff'd without opinion, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986); Abramson v. Pataki, 278 F.3d 93, 102 (2d Cir.2002); Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1200 (9th Cir.1989).

The school is on stronger ground in arguing that the rule strikes a reasonable balance between the competing interests— free speech and ordered learning — at stake in the case. But the plaintiff tells us that the Supreme Court has placed a thumb on the balance — that it has held that a school unable to prove that student speech will cause “disorder or disturbance,” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), can ban such speech only if it either is lewd, Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (“a sexually explicit monologue directed towards an unsuspecting audience of teenage students”), or advocates the consumption of illegal drugs. Morse v. Frederick,—U.S.-, 127 S.Ct. 2618, 2626-27, 168 L.Ed.2d 290 (2007). He notes that Justice Alito’s concurring opinion in Morse (joined by Justice Kennedy) disparages invocation of a school’s “educational mission” as a ground for upholding restrictions on high-school students’ freedom of speech; the opinion warns that such invocation “strikes at the very heart of the First Amendment,” id. at 2637, though one may doubt just how close debate by high-school students on sexual preferences really is to the heart of the First Amendment.

The plaintiff calls Justice Alito’s concurrence the “controlling” opinion in Morse because Justices Alito and Kennedy were part of a five-Justice majority, so that their votes were crucial to the decision. But they joined the majority opinion, not just the decision, and by doing so they made it a majority opinion and not merely, as the plaintiff believes (as does the Fifth Circuit, Ponce v. Socorro Independent School District, 508 F.3d 765, 768 (5th Cir.2007)), a plurality opinion. McKevitt v. Pallasch, 339 F.3d 530, 531-32 (7th Cir.2003). The concurring Justices wanted to emphasize that in allowing a school to forbid student speech that encourages the use of illegal drugs the Court was not giving schools carte blanche to regulate student speech. And they were expressing their own view of the permissible scope of such regulation.

If the schoolchildren are very young or the speech is not of a kind that the First Amendment protects (both features of our decision in Brandt v. Board of Education of City of Chicago, 480 F.3d 460, 465-66 (7th Cir.2007), which, as the plaintiff correctly notes, distinguishes that case from this one), the school has a pretty free hand. See id.; Muller by Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1538-39 (7th Cir.1996); Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 738 (7th Cir.1994); Blau v. Fort Thomas Public School District, 401 F.3d 381, 389 (6th Cir.2005); Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 416-17 (3d Cir.2003); Lovell by Lovell v. Poway Unified School District, 90 F.3d 367, 373 (9th Cir.1996). But it does not follow that because those features are missing from this case the school must prove that the speech it wants to suppress will cause “disorder or disturbance,” or that it “materially disrupts classwork or involves substantial disorder” or “would materially and substantially disrupt the work and discipline of the school.”

All three formulas are found in Tinker v. Des Moines Independent Community School District, supra, 393 U.S. at 513, but that was a quite different case from this. The school was discriminating against a particular point of view, namely opposition to the Vietnam war expressed by the wearing of black armbands. Id. at 510-11, 89 S.Ct. 733. The parallel to Tinker in this case would be a rule that forbade negative comments just about heterosexuality or just about homosexuality. And Tinker preceded Fraser and Morse. Taking the case law as a whole we don’t think a school is required to prove that unless the speech at issue is forbidden serious consequences will in fact ensue. That could rarely be proved. (Scott v. School Board of Alachua County, 324 F.3d 1246, 1249 (11th Cir.2003), and West v. Derby Unified School District No. 260, 206 F.3d 1358, 1365-66 (10th Cir.2000) — cases that involved the display of the Confederate flag in racially mixed schools — illustrate the rare case.) It is enough for the school to present “facts which might reasonably lead school officials to forecast substantial disruption.” 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 at 416; LaVine v. Blaine School District, 257 F.3d 981, 989 (9th Cir.2001).

This tells us what the standard of proof is. But what is “substantial disruption”? Must it amount to “disorder or disturbance”? Must classwork be disrupted and if so how severely? We know from Morse that the Supreme Court will let a school ban speech — even speech outside the school premises — that encourages the use of illegal drugs, without the school’s having to prove a causal relation between the speech and drug use. We know too that avoiding violence, if that is what “disorder or disturbance” connotes, is not a school’s only substantial concern. Violence was not the issue in Morse, or in Fraser, the lewd-speech case. In fact one of the concerns expressed by the Supreme Court in Morse was with the 'psychological effects of drugs. 127 S.Ct. at 2628-29; see also Canady v. Bossier Parish School Board, 240 F.3d 437, 443 (5th Cir.2001); cf. Vernonia School District 47J v. Acton, 515 U.S. 646, 656, 661-62, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Imagine the psychological effects if the plaintiff wore a T-shirt on which was written “blacks have lower IQs than whites” or “a woman’s place is in the home.”

From Morse and Fraser we infer that if there is reason to think that a particular type of student speech will lead to a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school — symptoms therefore of substantial disruption — the school can forbid the speech. The rule challenged by the plaintiff appears to satisfy this test. It seeks to maintain a civilized school environment conducive to learning, and it does so in an even-handed way. It is not as if the school forbade only derogatory comments that refer, say, to religion, a prohibition that would signal a belief that being religious merits special protection. See Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 394, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); R.A.V v. City of St. Paul, supra, 505 U.S. at 391-92, 112 S.Ct. 2538; Hedges v. Wauconda Community Unit School District No. 118, 9 F.3d 1295, 1298 (7th Cir.1993). The list of protected characteristics in the rule appears to cover the full spectrum of highly sensitive personal-identity characteristics. And the ban on derogatory words is general. Nuxoll can’t say “homosexuals are going to Hell” (though he can advocate heterosexuality on religious grounds) and it cannot be said back to him that “homophobes are closeted homosexuals.” The school’s rule bans “derogatory comments ... that refer to race, ethnicity, religion, gender, sexual orientation, or disability.”

We grant that a rule which forbids any class of remarks, however narrowly defined and whatever the justification, restricts free speech. But that observation is the beginning of the constitutional analysis, not the end. The number of restrictions on freedom of speech that have survived constitutional challenge is legion. This particular restriction, it is true, would not wash if it were being imposed on adults, id. at 390, 112 S.Ct. 2538; Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), because they can handle such remarks better than kids can and because adult debates on social issues are more valuable than debates among children. It probably would not wash if it were extended to students when they are outside of the school, where students who would be hurt by the remarks could avoid exposure to them. It would not wash if the school understood “derogatory comments” to embrace any statement that could be construed by the very sensitive as critical of one of the protected group identities. (That may, as we’ll see, be a problem with the school’s application of its rule to the facts of this case.) But high-school students are not adults, schools are not public meeting halls, children are in school to be taught by adults rather than to practice attacking each other with wounding words, and school authorities have a protective relationship and responsibility to all the students. Because of that relationship and responsibility, we are concerned that if the rule is invalidated the school will be placed on a razor’s edge, where if it bans offensive comments it is sued for violating free speech and if it fails to protect students from offensive comments by other students it is sued for violating laws against harassment, as in Nabozny v. Podlesny, 92 F.3d 446, 457 (7th Cir.1996).

We are mindful that the Supreme Court said in Tinker that “if a regulation were adopted by school officials forbidding discussion of the Vietnam conflict ... it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school.” 393 U.S. at 513, 89 S.Ct. 733. But to ban all discussion of the Vietnam war would in reality have been taking sides — would have delighted the government — because the debate over the war was started, maintained, and escalated by the war’s opponents.

So the plaintiff is not entitled to a preliminary injunction against the rule. And, his lawyer conceded at oral argument, neither is he entitled to a preliminary injunction against the defendants’ forbidding his making “negative comments” about homosexuality short of “fighting words.” Not only are such terms too vague to be the operative terms of an injunction, which must contain a detailed and specific statement of its terms, Fed.R.Civ.P. 65(d)(1)(A), (C); Schmidt v. Lessard, 414 U.S. 473, 475-77, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974) (per curiam); Hispanics United of DuPage County v. Village of Addison, 248 F.3d 617, 619-20 (7th Cir.2001); Burton v. City of Belle Glade, 178 F.3d 1175, 1200-01 (11th Cir.1999), but the plaintiffs lawyer did not propose any language to the district judge. A litigant has a feeble claim for a preliminary injunction when he can’t articulate what he wants enjoined. Cf. 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2949, pp. 212-13 (2d ed.2007); cf. Wolgin v. Simon, 722 F.2d 389, 394-95 (8th Cir.1983). The plaintiff concedes, therefore, that the most he is entitled to is an injunction that would permit him to stencil “Be Happy, Not Gay” on his T-shirt on the “Day of Truth” because forcing deletion of “Not Gay” stretches the school’s derogatory-comments rule too far. We must consider the argument carefully, because the term “derogatory comments” is unavoidably vague. (If a clearer formulation could be substituted, the rule might be invalid because of its vagueness, but the parties do not suggest alternative formulations.)

The expression “Be Happy, Not Gay” is a play on words, since “gay” used to be an approximate synonym for “happy” but now has been appropriated to designate homosexual orientation. One cannot even be certain that it is a “derogatory” comment; for “not gay” is a synonym for “straight,” yet the school has told us that it would not object to a T-shirt that said “Be Happy, Be Straight.” It wouldn’t object because to advocate X is not necessarily to disparage Y. If you say “drink Pepsi” you may be showing your preference for Pepsi over Coke, but you are not necessarily deriding Coke. It would be odd to call “Be Happy, Drink Pepsi” a derogatory comment about Coke.

But context is vital. Given kids’ sensitivity about their sexual orientation and their insensitivity about their preferences in soft drinks, the Pepsi-Coke analogy misses the mark. The plaintiff, like the students who participate in the “Day of Truth,” is expressing disapproval of homosexuality, as everyone knows. No one bothers to talk up heterosexuality who isn’t interested in denigrating homosexuality. The plaintiff himself describes “Be Happy, Not Gay” as one of the “negative comments” about homosexuality that he considers himself constitutionally privileged to make. He is in a better position than we are to interpret the meaning of his own comment.

Nevertheless, “Be Happy, Not Gay” is only tepidly negative; “derogatory” or “demeaning” seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says “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. We are therefore constrained to reverse the district court’s order with directions to enter forthwith (the “Day of Truth” is scheduled for April 28) a preliminary injunction limited however to the application of the school’s rule to a T-shirt that recites “Be Happy, Not Gay.” The school has failed to justify the ban of that legend, though the fuller record that will be compiled in the further proceedings in the case may cast the issue in a different light.

And further proceedings there will be. The plaintiff will not be content with the limited relief that we are ordering. This is cause litigation. He will press for a broader injunction as permanent relief, though one that will fall short of permitting him to use fighting words in his fight against homosexuality, for he has conceded that the school can ban fighting words. The district judge will be required to strike a careful balance between the limited constitutional right of a high-school student to campaign inside the school against the sexual orientation of other students and the school’s interest in maintaining an atmosphere in which students are not distracted from their studies by wrenching debates over issues of personal identity.