ACLU Says Court Strikes Appropriate Balance, Lets High School Student Wear 'Be Happy, Not Gay' T-Shirt

CHICAGO, April 24  /PRNewswire-USNewswire/ -- The American Civil Liberties Union of Illinois today agreed with the balance struck by a unanimous three-judge panel of the U.S. Seventh Circuit Court of Appeals in a case involving the right of a high school student to wear a t-shirt with the message, "Be Happy, not Gay." The appellate court held that the trial court should have granted the student a preliminary injunction protecting his First Amendment right to wear the t-shirt. The court also returned the case to the lower court for more complete review of the school's rules involving individual speech within the school. The case is Nuxoll et.al. v. Indian Prairie School District #204.

The ACLU filed an amicus brief in February in this case detailing the two fundamental rights implicated by the case: first, the fundamental right for public high school students to exercise their right to free speech, including the in-school expression of controversial and offensive messages; and second, a fundamental right to freedom from discrimination on the basis of protected status, including race, ethnicity, nationality, religion, sex, gender identity, sexual orientation and disability status.

"The court carefully weighed these two fundamental interests in our public schools and struck the appropriate balance as to this t-shirt," said Adam Schwartz, Senior Staff Counsel for the ACLU of Illinois. "Ensuring the free exchange of ideas -- even controversial ideas -- while protecting students against undue harassment fosters an environment where students are best able to learn, explore new ideas and mature."

According to the ACLU, courts should view these controversies through the standard set forth in the landmark school speech case, Tinker v. Des Moines, decided by the Supreme Court of the United States in 1969. Based on that decision, public high school officials cannot censor speech unless they can "reasonably . . . forecast" that disputed speech will cause a "substantial disruption" of school activities or impinge on the "rights of other students." Unfortunately, the public high school in this case argues that schools can suppress student speech whenever such speech conflicts with the school's basic educational mission -- a standard that improperly would allow censorship of most student free speech. Pointing out the importance of protecting student speech that is not disruptive or invasive of the rights of others, the ACLU brief notes recent court decisions that struck down efforts by high schools to limit the rights of students to form clubs supporting tolerance of gay and lesbian students.

The ACLU brief also argued that in deciding whether derogatory student speech can be censored because it invades "the rights of others," schools and courts should examine whether the speech comprises "harassment," as that term has been defined in decades of anti-discrimination case law. Specifically, in-school expression by a public high school student is unprotected harassment only when it is reasonably forecast by school officials to be severe or pervasive enough to (i) significantly hinder a reasonable student in obtaining an education because of his or her protected identity category, or (ii) significantly harm a reasonable student's physical, mental, or emotional well-being because of his or her protected identity category. Application of this standard is fact-intensive. Under this test, some derogatory messages will be protected speech, and others will be unprotected harassment.

The ACLU brief concluded by applying this standard to the facts of this case. First, the school's speech policy is unlawful on its face according to the ACLU, because it broadly prohibits all speech that disparages protected classes, rather than carefully distinguishing protected speech from unprotected harassment. This is the issue that the appellate has ordered the trial court to resolve on remand. Second, two students on one day should be allowed to wear the "be happy, not gay" t-shirts. This is the relief just granted by the appellate court.

A copy of the ACLU of Illinois' brief in Noxall v. Indian Prairie School District #204 can be found at

http://www.aclu-il.org/legal/courtdocuments/nuxoll.pdf. 

ACLU of Illinois