Zamecnik v. Indian Prairie Sch. Dist. #204, No. 07-1586 (N.D. Ill. April 17, 2007)
A U.S. district court in Illinois has declined to issue a preliminary order to force a high school to allow two students to wear T-shirts with a message the school deems anti-gay. Heidi Zamecnik and Alexander Nuxoll, students at Neuqua Valley High School, were prohibited from wearing T-shirts with the words "Be Happy, Not Gay." School officials likened this message to "Be Happy, Not Christian" and said it is an offensive interference with the rights of other students and poses a risk of disruption. Heidi and Alexander planned to wear the shirts during the "Day of Truth," an event promoted by the Alliance Defense Fund as a counter-demonstration to the Gay, Lesbian, and Straight Education Network’s annual "Day of Silence," which promotes tolerance of gays. When the school required them to turn the shirts inside-out, they sued Indian Prairie School District No. 204, alleging the ban violates their free speech right to express their religious views and their right to free exercise of religion. They also argued the school board policy underlying the ban is unconstitutionally overbroad and vague and constitutes an impermissible "prior restraint." A prior restraint is a government restriction on speech in advance, as opposed to an action taken in response to the speech.
The court framed the issue as "whether a high school may prohibit negative speech about homosexuality as part of its pedagogical mission to promote tolerance of differences among students." The court rejected the students’ reliance on Nixon v. Northern Local School District Board of Education, 383 F.Supp.2d 965 (S.D. Ohio 2005), which held that school officials could ban a T-shirt with an anti-gay slogan only out of a reasonable fear of "material and substantial" disruption under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Instead, the court concluded that the Ninth Circuit’s decision in Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), vacated as moot, 127 S. Ct. 1484 (2007), "is more consistent with Seventh Circuit precedents regarding the free speech rights of students than is Nixon."
While acknowledging that Harper has been vacated by the U.S. Supreme Court, the court still found the case persuasive. The court also rejected the students’ argument, based on Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001), that there is no overlap among the three categories of student speech identified in Supreme Court rulings: speech that is disruptive or infringes on the rights of others under Tinker; lewd or offensive speech under Bethel School District No. 403 v. Fraser , 478 U.S. 675 (1986); and speech contrary to a school’s legitimate pedagogical interest under Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Noting that Nixon viewed Tinker’s "rights of others" prong narrowly, the court found Harper’s more expansive interpretation recognizing "a school’s interest, if not duty, to protect minority groups from harassing conduct" to be more consistent with precedent in the Seventh Circuit, which includes Illinois. In Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996), the Seventh Circuit supported restrictions on student speech "that is insulting to the psyches of other students" and, since then, has "continued to indicate that a school’s pedagogical interests are taken into consideration even if the speech is not school-sponsored." While conceding the Seventh Circuit has not yet addressed the particular issue in this case, the lower court believed the appeals court would consider the school’s legitimate pedagogical concerns and its view of its educational mission.
The court acknowledged that the shirts’ message "does not contain invectives as strong as those in Harper and Nixon." Nonetheless, based on the facts presented at this preliminary stage, the court found school officials have a legitimate pedagogical interest in promoting tolerance toward, and respect for, diverse groups of students by protecting gay students from physical and psychological harm. While conceding that the students were restricted from expressing opposing views, the court concluded that the restriction only prohibited derogatory messages. An opposing viewpoint still could be expressed in a positive, non-derogatory manner, and in this sense the restriction was viewpoint neutral. Even if the policy were considered viewpoint discrimination favoring tolerance, promoting tolerance "could be taken as a reasonable promotion of the school’s basic educational mission."
Turning to the vagueness and overbreadth claims, the court cited Seventh Circuit precedent that broad limits of school authorities’ discretion are constitutionally sufficient and that tighter limits and overly precise rules would prevent educators from responding to novel situations. The court also found it need not immediately rule on the school board policy in order to rule on the students’ motion for preliminary injunction. As for the prior restraint claim, the court noted that schools are non-public fora, where a prior restraint is permissible as long as it is reasonable. Finally, the court held that the students "cannot show that the exercise of their sincere religious beliefs would be substantially burdened by not being able to express ‘Be Happy, Not Gay’ while in school on a particular day."
Zamecnik v. Indian Prairie Sch. Dist. #204, No. 07-1586 (N.D. Ill. April 17, 2007)
[Full opinion]
[Editor’s Note: Information on the Harper case appears starting at the first link below. The plaintiff in that case had appealed a later district court ruling in the case to the Ninth Circuit court, but this later ruling had still relied on the appeals court’s now vacated decision. Associate General Counsel Richard Hamilton of the California School Boards Association reports that the plaintiff in Harper now has requested that the appeals court instead remand the case to the district court to reconsider.
The question of overlap among Supreme Court cases on student speech was among those NSBA cited in urging the Court to review the Ninth Circuit’s decision in Morse v. Frederick, 439 F.3d 1114 (2006), the "Bong Hits 4 Jesus" case. Information on that case appears starting at the second link. According to NSBA’s first brief to the Court, submitted during the petition stage, "This Court’s rulings on student expression have resulted in courts tending to place the student speech at issue in one of three categories, each governed by a separate standard, although the speech may not neatly fit in any of them or may reasonably be seen as belonging in more than one."]
[NSBA School Law pages on Harper v. Poway Unified Sch. Dist.]
[NSBA School Law pages on Morse v. Frederick]
[NSBA petition brief in Morse v. Frederick]