Alexander Nuxoll v. Indian Prairie School District ( 2008 )

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 SCHOOL 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 injunction, which was denied,
and he appeals the denial. The parties tacitly agree that
2 No. 08-1050
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 there-
fore the school can prevail only if his claim is demon-
strably 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 advo-
cate 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 par-
ticipate 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 advo-
cates homosexuality or criticizes heterosexuality. Indeed,
opposition to harassment of persons who happen to be
No. 08-1050 3
homosexual is consistent with disapproval of homosexual-
ity 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 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 “deroga-
tory comments,” oral or written, “that refer to race, eth-
nicity, 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
4 No. 08-1050
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) (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 constitu-
tional hand on the regulation of student speech by
school authorities would make little sense. The contribu-
tion 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 Amuse-
ment 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 prohib-
ited only (1) derogatory comments on (2) unalterable or
otherwise deeply rooted personal characteristics about
No. 08-1050 5
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 per-
sonal 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 deroga-
tory 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, Discrimina-
tion, 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 Discrimina-
tion 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 stu-
dents—and the potential for wounding speech con-
cerning the personal characteristics listed in the school’s
rule is great. Nor, on the benefits side of the First Amend-
ment 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 prepara-
tion for the exercise of the franchise.
6 No. 08-1050
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 interven-
tion. A far more urgent problem, the high dropout rates in
many public schools, United States Department of Educa-
tion 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 docu-
mentary 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
No. 08-1050 7
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 indica-
tion 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 (1952), has
never been overruled, no one thinks the First Amend-
ment would today be interpreted to allow group defama-
tion 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
8 No. 08-1050
(1986) (“a sexually explicit monologue directed towards
an unsuspecting audience of teenage students”), or advo-
cates 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 “con-
trolling” 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
No. 08-1050 9
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 sup-
press will cause “disorder or disturbance,” or that it
“materially disrupts classwork or involves substantial
disorder” or “would materially and substantially dis-
rupt 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 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 for-
bidden 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
10 No. 08-1050
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 disturb-
ance” connotes, is not a school’s only substantial con-
cern. Violence was not the issue in Morse, or in Fraser,
the lewd-speech case. In fact one of the concerns ex-
pressed 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 writ-
ten “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 there-
fore 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
No. 08-1050 11
derogatory comments that refer, say, to religion, a pro-
hibition 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 (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 charac-
teristics 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 homo-
sexuals.” 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 justifica-
tion, 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 school understood “deroga-
tory comments” to embrace any statement that could be
12 No. 08-1050
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 respon-
sibility, 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 harass-
ment, 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 constitu-
tional 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 argu-
ment, neither is he entitled to a preliminary injunction
against the defendants’ forbidding his making “negative
comments” about homosexuality short of “fighting words.”
No. 08-1050 13
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
(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); 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
14 No. 08-1050
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 homo-
sexuality, as everyone knows. No one bothers to talk up
heterosexuality who isn’t interested in denigrating homo-
sexuality. The plaintiff himself describes “Be Happy,
Not Gay” as one of the “negative comments” about homo-
sexuality that he considers himself constitutionally privi-
leged 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
No. 08-1050 15
of that legend, though the fuller record that will be com-
piled 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.
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
16 No. 08-1050
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 substan-
tially 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 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 distin-
guishable from the instant case. Supra at 9. Tinker involved
students who wished to wear black armbands to protest the
1
A Möbius strip is a “continuous, one-sided surface formed
by twisting one end of a rectangular strip through 180° 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 17
Vietnam war. School officials would not allow the arm-
bands 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 dis-
crimination, 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 12, because the debate over
the war was initiated by those opposed to it. And here is
the Möbius strip. Under the majority’s reasoning, allow-
ing 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 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
18 No. 08-1050
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, 8 and 11. 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 11, is contrary to the values of the First Amend-
ment. Justice Brennan eloquently stated this for the Court
more than forty years ago, and his words ring especially
true today:
The vigilant protection of constitutional freedoms is
nowhere more vital than in the community of Ameri-
can schools. The classroom is peculiarly the market-
place of ideas. The Nation’s future depends upon
No. 08-1050 19
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. Peter-
son, 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 sub-
jected 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 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
(continued...)
20 No. 08-1050
My brothers also wonder whether this slogan is actually
derogatory, noting that it is a play on the words “happy”
and “gay.” Supra at 13. 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,
3
(...continued)
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. More-
over, 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 21
the idea that “not gay” is a synonym for “straight,” supra
at 13, fails to recognize the many nuances of sexual ori-
entation 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 on the other end.
I scarcely know where to begin with the Pepsi/Coke
analogy and even the majority seems to realize the compar-
ison 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 substan-
tially 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 interrup-
tion 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 12, 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 judi-
22 No. 08-1050
ciary took the “hands off” approach to school regulation
of speech favored by my brothers? Supra at 6.4 This time
I turn to Justice Jackson, speaking for the Court more than
sixty years ago:
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 re-
spect for differing points of view but it does not grant a
license to shut down dissension because of an “undifferen-
tiated 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 compati-
ble. The First Amendment as interpreted by Tinker
is consistent with the school’s mission to teach by en-
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 23
couraging 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 rea-
sons, I respectfully concur in the judgment.
USCA-02-C-0072—5-2-08