7th Rules In Favor Of Student Who Wanted To Wear A "Be Happy, Not Gay" T-Shirt

There seems to be more and more free speech claims brought by students against school districts. Nuxoll v. Indian Prairie School Dist., __F.3d___(7th Cir. April 23, 2008) is one such case. The 7th Circuit held that a high school student was likely to succeed on the merits of his free speech claim. He asserted that the school district violated the First Amendment by preventing him from wearing a T-shirt bearing the slogan "Be happy, Not Gay" in response to a day of silence intended to draw attention to the harassment of homosexuals. As The court reasoned:

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.

The court decision, written by Judge Posner, provides an excellent primer on student free speech rights. The court basically follows Tinker in finding that there would be no irreparable harm allowing the student to wear this t-shirt.

Mitchell H. Rubinstein