School District Ban on T-Shirt Violates First Amendment

A three-judge panel of the Seventh Circuit ruled last week in Zamecnik v. Indian Prairie School District #204 that officials at Neuqua Valley High School in Naperville, Illinois, violated the First Amendment when they prohibited a student from sporting a t-shirt that read "Be Happy, Not Gay."

The statement on the t-shirt was the student's anti-gay response to the Day of Silence, an annual event sponsored by a private group called the Gay, Lesbian, and Straight Education Network and intended to draw critical attention to harassment of gays and lesbians.  Some students and faculty wear t-shirts that read "Be Who You Are" on the Day of Silence.  

Officials at the school claimed that the student's statement interfered with the rights of gay and lesbian students.  The Seventh Circuit ruled that that interest wasn't enough to justify suppressing speech, especially when it allowed speech supporting gays and lesbians on the Day of Silence:

Thus a school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality. . . .  [P]eople in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.  R.A.V. v. City of St. Paul. . . . .

"Be Happy, Not Gay" is not an instance of fighting words.  To justify prohibiting their display the school would have to present "facts which might reasonably lead school officials to forecast substantial disruption."  Tinker v. Des Moines Independent Community School District. . . .  Such facts might include a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school--but the school had presented no such facts in response to the motion for a preliminary injunction.

Op. at 5.

The panel also looked to the school's civil educational mission as a reason for allowing the speech:

Although tolerance of homosexuality has grown, gay marriage remains highly controversial.  Today's high school students may soon find themselves, as voters, asked to vote on whether to approve gay marriage, or to vote for candidates who approve of it, or ones who disapprove.

Op. at 4.

SDS