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Federal Judiciary: Decision of the Day
Seventh Upholds Student?s Right to Wear ?Be Happy, Not Gay? T-Shirt
By Robert Loblaw
Nuxoll v. Indian Prairie School District, 08-1050 (7th Cir., April 23, 2008)
In a late-breaking school speech case, the Seventh Circuit has concluded that a high school sophomore is entitled to a preliminary injunction that allows him to wear a banned t-shirt opposing homosexuality.
This case arises from dueling awareness days and accompanying t-shirts in a Naperville, Illinois high school. On the school?s “Day of Silence,” members of the school?s gay-straight alliance broadcast their tolerance by wearing t-shirts with slogans like “Be Who You Are.” The next day is called “Day of Truth,” on which a different group of students wear t-shirts with slogans like “Be Happy, Not Gay.”
School officials concluded that the latter slogan violated the school?s code of conduct, which forbids derogatory comments about race, religion, gender, sexual orientation, or disability. So sophomore Alexander Nuxoll sued, arguing that he had a First Amendment right to wear his “Be Happy, Not Gay” t-shirt. The district court denied preliminary relief, but the Seventh Circuit reverses. The panel unanimously agrees that Nuxoll is likely to succeed on the merits of this claim and is therefore entitled to a preliminary injunction.
Judge Posner?s lead opinion is worth reading, as always. But so is Judge Rovner?s concurrence. While Judge Posner scratches his head wondering why kids are so silly and why anyone would be offended at a t-shirt, Judge Rover spills an inordinate amount of ink explaining why the slogan is derogatory. But she spills even more ink explaining why speech in schools is so important. It is a breath of fresh air after decisions like this and this, in which judges have openly disdained students who pursue First Amendment crusades. The Seventh?s decision also creates an unacknowledged split with the Ninth, which rejected a similar claim from an anti-gay high schooler. (My coverage here.)
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