Alexander Nuxoll v. Indian Prairie School District

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
________________________
No. 08–1050
ALEXANDER NUXOLL, by his next friends, MICHAEL NUXOLL
and PENNY NUXOLL,
Plaintiff-Appellant,
v.
INDIAN PRAIRIE S CHOOL DISTRICT #204, et al.,
Defendants-Appellees.
__________________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 1586—William T. Hart, Judge.
__________________________
Argued April 4, 2008—Decided April 23, 2008*
__________________________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
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
*
The opinion is being released in transcript (with the printed version to follow)
because the appellant is seeking a preliminary injunction to enable him to
engage in an activity scheduled for April 28.
No. 08–1050 2
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 (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.
No. 08–1050 3
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 coplaintiff (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 (1942)
No. 08–1050 4
(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 (1992); Texas v. Johnson, 491 U.S. 397,
409–10 (1989); Cohen v. California, 403 U.S. 15, 20–21 (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.
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.
No. 08–1050 5
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. Huebner 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/uslgbt/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
No. 08–1050 6
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 (1988). There is no
indication that the negative comments that the plaintiff wants to
make about homosexuals or homosexuality names or otherwise
No. 08–1050 7
targets an individual or is defamatory. Anyway, though
Beauharnais v. Illinois, 343 U.S. 250 (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 (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 (1969), can ban such speech only if it either is lewd,
Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685 (1986)
(“a sexually explicit monologue directed towards an
unsuspecting audience of teenage students”), or advocates the
consumption of illegal drugs. Morse v. Frederick, 127 S. Ct. 2618,
2626–27 (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
No. 08–1050 8
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. The parallel to Tinker in this case
would be a rule that forbade negative comments just about
heterosexuality or just about homosexuality. And Tinker
No. 08–1050 9
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 (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
No. 08–1050 10
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 Di strict, 508 U.S. 384, 394 (1993); R.A.V. v. City of St. Paul,
supra, 505 U.S. at 391–92; 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;
Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S.
819, 829 (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
No. 08–1050 11
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. 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
No. 08–1050 12
terms, Fed. R. Civ. P. 65(d)(1)(A), (C); Schmidt v. Lessard, 414
U.S. 473, 475–77 (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 plaintiff’s 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, 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
No. 08–1050 13
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
No. 08–1050 14
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.
ROVNER, Circuit Judge, concurring in the judgment. I agree
that we should reverse and remand this case to the district court
with instructions to enter an injunction allowing Nuxoll to wear
a shirt bearing the slogan “Be Happy, Not Gay” on the school
day following the Day of Silence. I view this as a simple case.
We are bound by the rule of Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 393 U.S. 503 (1969), a case that the majority portrays
in such a convoluted fashion that the discussion folds in on
itself like a Möbius strip.1 Tinker straight-forwardly tells us that,
in order for school officials to justify prohibition of a particular
expression of opinion, they must be able to show that this
“action was caused by something more than a mere desire to
avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint.” 393 U.S. at 509. Under
Tinker, students may express their opinions, even on
controversial subjects, so long as they do so “without
‘materially and substantially interfer[ing] with the requirements
of appropriate discipline in the operation of the school’ and
without colliding with the rights of others.” 393 U.S. at 512-13(quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).2
The school district has “not demonstrate[d] any facts which
1
A Möbius strip is a “continuous, one-sided surface formed by
twisting one end of a rectangular strip through 180E about the longitudinal
axis of the strip and attaching this end to the other.” Webster’s Unabridged
Dictionary of the English Language, (RHR Press, 2001).
2
I will hereafter use the term “substantial disruption” as shorthand
for the Tinker standard.
No. 08–1050 15
might reasonably have led school authorities to forecast
substantial disruption of or material interference with school
activities,” and no such disruption occurred two years earlier
when Nuxoll’s co-plaintiff wore such a shirt to school following
the Day of Silence. Tinker, 393 U.S. at 514. Therefore, this
particular expression must be allowed.
Contrary to the majority’s characterization, Tinker is not a
case about viewpoint discrimination and is not distinguishable
from the instant case. Supra at 8. Tinker involved students who
wished to wear black armbands to protest the Vietnam war.
School officials would not allow the armbands although they
did allow students to wear other symbols of political or
controversial significance, including political campaign buttons
and the Iron Cross, a symbol that is associated with Nazism.
The Court concluded that “the prohibition of expression of one
particular opinion, at least without evidence that it is necessary
to avoid material and substantial interference with schoolwork
or discipline, is not constitutionally permissible.” Tinker, 393
U.S. at 511. Tinker reveals nothing about whether the school
allowed symbols or other expressions of opinion favorable to
U.S. involvement in the Vietnam war, and so there is no reason
to read Tinker as a case about viewpoint. It is more
appropriately characterized as a discussion about subject matter
discrimination, although the opinion is not limited to the
circumstance where the school has banned all discussion of a
particular subject. The majority attempts to turn Tinker into a
viewpoint case by stating that a school ban on “all discussion of
the Vietnam war would in reality have been taking sides,” supra
at 11, because the debate over the war was initiated by those
opposed to it. And here is the Möbius strip. Under the
majority’s reasoning, allowing open debate on any subject
would constitute taking the side of the anti-status quo. Open
debate could never simply be open debate; it would constitute
“taking sides,” in particular taking the side of the party
No. 08–1050 16
opposed to the status quo. Open debate is the very value
preserved by the First Amendment and yet the majority reduces
it to stealth viewpoint expression. The majority expends much
ink trying to strike a balance between the interests of free
speech and ordered learning, a discussion which sounds
remarkably similar to the rule of Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260 (1988), where the Supreme Court set a
balancing rule for school-sponsored speech. This case does not
involve school-sponsored speech, and there is no need for us to
strike a new balance; the Supreme Court has already set the
applicable standard in Tinker.
Moreover, I heartily disagree with my brothers about the
value of the speech and speech rights of high school students,
which the majority repeatedly denigrates. Supra, at 4, 5, 7 and
10. Youth are often the vanguard of social change. Anyone
who thinks otherwise has not been paying attention to the civil
rights movement, the women’s rights movement, the anti-war
protests for Vietnam and Iraq, and the recent presidential
primaries where the youth voice and the youth vote are having
a substantial impact. And now youth are leading a broad,
societal change in attitude towards homosexuals, forming
alliances among lesbian, gay, bisexual, transgendered (“LGBT”)
and heterosexual students to discuss issues of importance
related to sexual orientation. They have initiated a dialogue in
which Nuxoll wishes to participate. The young adults to whom
the majority refers as “kids” and “children” are either already
eligible, or a few short years away from being eligible to vote, to
contract, to marry, to serve in the military, and to be tried as
adults in criminal prosecutions. To treat them as children in
need of protection from controversy, to blithely dismiss their
views as less valuable than those of adults, supra at 10, is
contrary to the values of the First Amendment. Justice Brennan
eloquently stated this for the Court more than forty years ago,
and his words ring especially true today:
No. 08–1050 17
The vigilant protection of constitutional freedoms
is nowhere more vital than in the community of
American schools. The classroom is peculiarly the
marketplace of ideas. The Nation’s future
depends upon leaders trained through wide
exposure to that robust exchange of ideas which
discovers truth out of a multitude of tongues,
rather than through any kind of authoritative
selection.
Tinker, 393 U.S. at 512 (quoting Keyishian v. Board of Regents, 385
U.S. 589, 603 (1967)) (internal citations and quotation marks
omitted). See also Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d
1048, 1055 (7th Cir. 2004) (“The strength of our democracy
depends on a citizenry that knows and understands its
freedoms, exercises them responsibly, and guards them
vigilantly. Young adults . . . are not suddenly granted the full
panoply of constitutional rights on the day they attain the age of
majority. We not only permit but expect youths to exercise
those liberties-to learn to think for themselves, to give voice to
their opinions, to hear and evaluate competing points of
view-so that they might attain the right to vote at age eighteen
with the tools to exercise that right.”) The majority also treats
the subject matter of sexual orientation as lacking importance,
apparently failing to notice that, for the last decade or two, state
and national legislatures have been awash with debates over
the limits placed on the rights of LGBT persons, and that
presidential candidates are often subjected to litmus tests on
these very issues. Finally, there may be no more important time
than adolescence for individuals to contemplate issues relating
to their sexual identity. These are important issues and the
voices of young adults add much to the discussion.3
3
The majority also mischaracterizes the plaintiff’s position as one
seeking the outer limits of the Chaplinsky “fighting words” doctrine. See
No. 08–1050 18
My brothers also wonder whether this slogan is actually
derogatory, noting that it is a play on the words “happy” and
“gay.” Supra at 12. That it is a play on words does not change
its ultimate meaning, however. Nuxoll tells us that he intends
the slogan to convey the message that “homosexual behavior is
contrary to the teachings of the bible, damaging to the
participants and society at large, and does not lead to
happiness.” Throughout his brief, he claims to be criticizing
homosexual “conduct” and “behavior” although his four-word
polemic “Be Happy, Not Gay” does little to convey this
message and instead seems to attack homosexual identity.
Nonetheless, the statement is clearly intended to derogate
homosexuals. Teenagers today often use the word “gay” as a
generic term of disparagement. They might say, “That sweater
is so gay” as a way of insulting the look of the garment. In this
way, Nuxoll’s statement is really a double-play on words
because “gay” formerly meant “happy” in common usage, and
now “gay,” in addition to meaning “homosexual” is also often
used as a general insult. Nuxoll’s statement easily fits the
school’s definition of “disparaging” and would meet that
standard for most listeners. Moreover, the idea that “not gay”
is a synonym for “straight,” supra at 12, fails to recognize the
many nuances of sexual orientation that have been apparent
since 1948, when Alfred Kinsey first set forth his zero-to-six
Kinsey Scale, defining a continuum of sexuality from
exclusively heterosexual on one end to exclusively homosexual
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). True, the plaintiff
ultimately seeks to expand the limits of his speech regarding his religious
views of homosexuality, but he concedes that he is limited by Tinker, not
Chaplinsky. Moreover, at oral argument, he limited his request for relief at
this stage to a preliminary injunction that would allow him to wear his “Be
Happy, Not Gay” shirt on the day following the Day of Silence. There is no
need for us to address the policy as a whole or any other speech at this point
in the litigation. I therefore reserve for another time my own grave doubts
as to the Constitutionality of the school’s policy on its face.
No. 08–1050 19
on the other end. I scarcely know where to begin with the
Pepsi/Coke analogy and even the majority seems to realize the
comparison misses the mark. I would add that it misses the
mark by a rather wide margin. In any case, there is no doubt
that the slogan is disparaging. That said, it is not the kind of
speech that would materially and substantially interfere with
school activities. I suspect that similar uses of the word “gay”
abound in the halls of Neuqua Valley High School and virtually
every other high school in the United States without causing
any substantial interruption to the educational process. There is
a significant difference between expressing one’s religiously-
based disapproval of homosexuality and targeting LGBT
students for harassment. Though probably offensive to most
LGBT students, the former is not likely by itself to create a
hostile environment. Certainly, this is not a case like Nabozny v.
Podlesney, 92 F.3d 446 (7th Cir. 1996), where students repeatedly
called a gay classmate a “faggot,” struck him, spit on him,
threw him into a urinal, beat him to such a degree that he
suffered internal bleeding, and subjected him to a mock rape in
a classroom while a few dozen people looked on and laughed at
him. So severe and constant and enduring was his classmates’
abuse, that Nabozny twice attempted suicide. The defendants
here are unlikely to find themselves on the “razor’s edge” of
Nabozny, supra at 11, as a result of Nuxoll’s t-shirt.
And what lesson would we teach young adults about the
importance of our Constitutional rights if the judiciary took the
“hands off” approach to school regulation of speech favored by
my brothers? Supra at 5.4 This time I turn to Justice Jackson,
speaking for the Court more than sixty years ago:
4
The majority limits its suggested “hands off” approach with the
words “within reason” but seems to approve much broader discretion for
school authorities than Tinker or its progeny would allow.
No. 08–1050 20
The Fourteenth Amendment, as now applied to
the States, protects the citizen against the State
itself and all of its creatures – Boards of Education
not excepted. These have, of course, important,
delicate, and highly discretionary functions, but
none that they may not perform within the limits
of the Bill of Rights. That they are educating the
young for citizenship is reason for scrupulous
protection of Constitutional freedoms of the
individual, if we are not to strangle the free mind
at its source and teach youth to discount
important principles of our government as mere
platitudes.
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637
(1943) (quoted in Tinker, 393 U.S. at 507). The First Amendment
provides the school with an opportunity for a discussion about
the values of free speech and respect for differing points of view
but it does not grant a license to shut down dissension because
of an “undifferentiated fear or apprehension of disturbance.”
Tinker, 393 U.S. at 508. Contrary to the majority’s view that
“free speech and ordered learning” are “competing interests,”
supra at 7, I would argue that these values are compatible. The
First Amendment as interpreted by Tinker is consistent with the
school’s mission to teach by encouraging debate on
controversial topics while also allowing the school to limit the
debate when it becomes substantially disruptive. Nuxoll’s
slogan-adorned t-shirt comes nowhere near that standard. For
all of these reasons, I respectfully concur in the judgment.