To be honest, I'm struggling with this situation in a local school.  I support free speech and love our Constitution, but somehow I think the opportunity to teach our children tolerance and understanding of those who are different was lost in the rush to the courthouse. 

Court OKs anti-gay T-shirt

Civil case continues to determine speech limits

The third time was the charm for a Neuqua Valley High School student who wants to express his sentiments on homosexuality by wearing a "Be Happy, Not Gay" T-shirt to class.

Neuqua sophomore Alex Nuxoll had twice filed for an injunction that would suspend the school's policy that prevents him from wearing the T-shirt.

And twice courts had denied that request.

But on Wednesday the U.S. Court of Appeals for the 7th Circuit reversed the lower courts' rulings against Nuxoll, saying the district court must order Neuqua to suspend its ban on the shirt while the civil rights lawsuit filed by Nuxoll and Neuqua grad Heidi Zamecnik proceeds.

In issuing this reversal, though, the court basically upheld the validity of the school's rule forbidding derogatory comments, oral or written, that refer to race, ethnicity, religion, gender, sexual orientation, or disability.

"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," states the court's opinion, authored by Judge Richard Posner. "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."

That said, the court determined that the T-shirt did not break the rule it upheld, and it granted Nuxoll's request for a temporary injunction allowing him to wear it.

"'Be Happy, Not Gay' is only tepidly negative; 'derogatory' or 'demeaning' seems too strong a characterization," Posner wrote. "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."

The court's ruling came two days before today's annual Day of Silence, during which some students choose not to talk throughout the school day unless doing so interferes with their grades. Sponsored by the school's Gay/Straight Alliance, the day is intended to "echo" the silence that students who are gay face all the time. During the Day of Silence, students often wear written messages on shirts, buttons and stickers showing their support of peers who are gay.

This case arose two years ago when Zamecnik, then a junior at Neuqua, decided to wear her own homemade T-shirt expressing her sentiments on homosexuality. She wore it the day after the Day of Silence, which some call the Day of Truth.

The shirt said "My Day of Silence, Straight Alliance" on the front and "Be Happy, Not Gay" on the back. According to the federal lawsuit Zamecnik filed against Indian Prairie District 204's board and various district and school administrators, she was told she had to remove the shirt or leave school because some students and staff found it offensive.

Attorney Jack Canna defended Indian Prairie School District 204 against the lawsuit. Canna said that while the district would have preferred to have prevailed, he was not disappointed by the broader legal reasoning expressed in the court's opinion. Neuqua's rule was deemed valid and enforceable, and the ruling also acknowledged "the authority of the schools to control demeaning and negative speech, one kid against another," as well as "concerns about the atmosphere for learning," he said.

"It's a difficult road for these school districts and school administrators to tread," he said. "It's hard to know which direction to go, and I think some of the ruling here helps us in that regard."

Canna also noted Nuxoll's temporary injunction request was expedited, which he said didn't leave the district with enough of an opportunity to present its side of the story. He anticipates it will get that opportunity as the students' civil rights lawsuit advances.

"I think we're more concerned with presenting over the long haul the reason why District 204 and other districts have these policies," Canna said. "What is really happening in the buildings? Why it is important from an education standpoint to address civility and demeanor and the atmosphere of the building?"

Nuxoll's parents referred a request for comments to their legal counsel.

Representing Nuxoll is attorney Nathan Kellum of the Alliance Defense Fund, a conservative Christian litigation group.

"We are very pleased with the result because finally Alex will be given an opportunity to share his viewpoint on the topic of homosexual behavior," Kellum said.

However, Kellum also said he believes the question lingers of how far Neuqua can and will go to curb negative comments about homosexual conduct.

"(Alex) wants to be able to make references to scripture in supporting his reasoning that homosexual behavior does not lead to happiness, and there's a very big question as to whether he would be allowed to do that, and I think that that's something that's going to have to be flushed out by the remainder of the litigation," Kellum said.

The court recognized these desires in its ruling, and predicted that this temporary injunction will not bring an end to the students' overarching civil rights lawsuit.

"(Nuxoll) 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," Ponzer said. "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."