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Nuxoll v. Indian Prairie School District #204

April 23, 2008

ALEXANDER NUXOLL, BY HIS NEXT FRIENDS, MICHAEL NUXOLL AND PENNY NUXOLL, PLAINTIFF-APPELLANT,
v.
INDIAN PRAIRIE SCHOOL DISTRICT #204, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 C 1586-William T. Hart, Judge.

The opinion of the court was delivered by: Posner, Circuit Judge

ARGUED APRIL 4, 2008

Before POSNER, KANNE, and ROVNER, Circuit Judges.

The plaintiff, a sophomore at Neuqua Valley High School, a large public high school in Naperville, Illinois, has brought suit against the school district and school officials contending that they are violating his right to free speech by forbidding him to make negative comments at school about homosexuality. He moved for a preliminary injunction, which was denied, and he appeals the denial. The parties tacitly agree that he is entitled to a preliminary injunction if he has shown a reasonable probability that his right to free speech is being violated. The Supreme Court believes that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion); see also Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir. 2006); Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000). The school has not tried to show that the grant of a preliminary injunction, at least if narrowly drafted, would cause irreparable harm to it. So the balance of harms inclines toward the plaintiff, and therefore the school can prevail only if his claim is demonstrably weak.

A private group called the Gay, Lesbian, and Straight Education Network promotes an annual event called the "Day of Silence" that is intended to draw attention to harassment of homosexuals. See www.dayofsilence.org (visited Apr. 5, 2008). The idea behind the name is that homosexuals are silenced by harassment and other discrimination. The goal of the "Day of Silence" is not to advocate homosexuality but to advocate tolerance for homosexuals. A student club at Neuqua Valley High School called the Gay/Straight Alliance sponsors the "Day of Silence" at the school. Students participate by remaining silent throughout the day except when called upon in class, though some teachers, as part of their own observance of the "Day of Silence," will not call on students participating in the observance. Some students and faculty wear T-shirts that day with legends such as "Be Who You Are." None of the legends advocates homosexuality or criticizes heterosexuality. Indeed, opposition to harassment of persons who happen to be homosexual is consistent with disapproval of homosexuality itself.

The plaintiff is one of the students who disapprove of homosexuality. Some of them participate in a "Day of Truth" (see www.dayoftruth.org (visited Apr. 5, 2008)) held on the first school day after the "Day of Silence." They recommend that supporters wear a T-shirt that reads "day of truth" and "The Truth cannot be silenced." Two years ago a coplaintiff (who has since graduated and as a result is no longer seeking injunctive relief) wore a shirt that read "My Day of Silence, Straight Alliance" on the front and "Be Happy, Not Gay" on the back. A school official had the phrase "Not Gay" inked out. Last year neither plaintiff wore a shirt that contained the phrase, or otherwise tried to counter the Day of Silence, for fear of being disciplined.

None of the slogans mentioned so far has been banned by the school authorities except "Be Happy, Not Gay." The school bases the ban on a school rule forbidding "derogatory comments," oral or written, "that refer to race, ethnicity, religion, gender, sexual orientation, or disability." The school deems "Be Happy, Not Gay" a derogatory comment on a particular sexual orientation. The school's position is that members of a listed group may comment favorably about their own group but may not make a derogatory comment about another group. The rule does not apply to comments made outside of school.

The plaintiff challenges the rule, as well as its application in this case. He believes that the First Amendment entitles him to make, whether in school or out, any negative comments he wants about the members of a listed group, including homosexuals (a group defined of course by sexual orientation), provided they are not inflammatory words-that is, not "fighting words," words likely to provoke a violent reaction and hence a breach of the peace. The Supreme Court has placed fighting words outside the protection of the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73 (1942) (Jehovah's Witness called a government official "a God damned racketeer" and "a damned Fascist"). Although subsequent invocations of the doctrine have failed, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992); Texas v. Johnson, 491 U.S. 397, 409-10 (1989); Cohen v. California, 403 U.S. 15, 20-21 (1971); Collin v. Smith, 578 F.2d 1197, 1204-05 (7th Cir. 1978); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997), the plaintiff concedes its continued validity and further concedes that he could not inscribe "homosexuals go to Hell" on his T-shirt because those are fighting words and so can be prohibited despite their expressive content and arguable theological support. R.A.V. v. City of St. Paul, supra, 505 U.S. at 386.

The concession is prudent. A heavy federal constitutional hand on the regulation of student speech by school authorities would make little sense. The contribution that kids can make to the marketplace in ideas and opinions is modest and a school's countervailing interest in protecting its students from offensive speech by their classmates is undeniable. Granted, because 18-year-olds can now vote, high-school students should not be "raised in an intellectual bubble," as we put it in American Amusement Machine Association v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001), which would be the effect of forbidding all discussion of public issues by such students. But Neuqua Valley High School has not tried to do that. It has prohibited only (1) derogatory comments on (2) unalterable or otherwise deeply rooted personal characteristics about which most people, including-perhaps especially including-adolescent schoolchildren, are highly sensitive. People are easily upset by comments about their race, sex, etc., including their sexual orientation, because for most people these are major components of their personal identity-none more so than a sexual orientation that deviates from the norm. Such comments can strike a person at the core of his being.

There is evidence, though it is suggestive rather than conclusive, that adolescent students subjected to derogatory comments about such characteristics may find it even harder than usual to concentrate on their studies and perform up to the school's expectations. See David M. Huebner et al., "Experiences of Harassment, Discrimination, and Physical Violence Among Young Gay and Bisexual Men," 94 Am. J. Public Health 1200-01 (July 2004); Michael Bochenek & A. Widney Brown, Human Rights Watch, "Hatred in the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual, and Transgender Students in U.S. Schools" 1-3 (2001), www.hrw.org/ reports/2001/uslgbt/toc.htm (visited Apr. 15, 2008); American Association of University Women Educational Foundation, "Hostile Hallways: Bullying, Teasing, and Sexual Harassment in School" 37 (2001), www.aauw.org/ research/upload/hostilehallways.pdf (visited Apr. 14, 2008). Neuqua Valley High School is huge-4200 students-and the potential for wounding speech concerning the personal characteristics listed in the school's rule is great. Nor, on the benefits side of the First Amendment balance, is uninhibited high-school student hallway debate over sexuality-whether carried out in the form of dueling T-shirts, dueling banners, dueling pamphlets, annotated Bibles, or soapbox oratory-an essential preparation for the exercise of the franchise.

A judicial policy of hands off (within reason) school regulation of student speech has much to recommend it. On the one hand, judges are incompetent to tell school authorities how to run schools in a way that will preserve an atmosphere conducive to learning; on the other hand the suppression of adolescents' freedom to debate sexuality is not one of the nation's pressing problems, or a problem that can be solved by aggressive federal judicial intervention. A far more urgent problem, the high dropout rates in many public schools, United States Department of Education National Center for Education Statistics, "Dropout Rates in the United States: 2005" 3-5 (June 2007), nces.ed.gov/pubs2007/2007059.pdf (visited Apr. 14, 2008), will not be solved by First Amendment free-for-alls, though happily the drop-out rate at Neuqua Valley High School, serving as it does the wealthy city of Naperville, is negligible.

It may not be obvious to an outsider how a T-shirt on which is written the slogan "Be Happy, Not Gay" will poison the school atmosphere, but the outsider is-an outsider. And of course the plaintiff doesn't want to stop there. He wants to wear T-shirts that make more emphatically negative comments about homosexuality, provided only that the comments do not cross the line that separates nonbelligerent negative comments from fighting words, wherever that line may be. He also wants to distribute Bibles to students to provide documentary support for his views about homosexuality. We foresee a deterioration in the school's ability to educate its students if negative comments on homosexuality by students like Nuxoll who believe that the Bible is the word of God to be interpreted literally incite negative comments on the Bible by students who believe either that there is no God or that the Bible should be interpreted figuratively. Mutual respect and forbearance enforced by the school may well be essential to the maintenance of a minimally decorous atmosphere for learning.

But we cannot accept the defendants' argument that the rule is valid because all it does is protect the "rights" of the students against whom derogatory comments are directed. Of course a school can-often it must-protect students from the invasion of their legal rights by other students. But people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life. R.A.V. v. City of St. Paul, supra, 505 U.S. at 394; Boos v. Barry, 485 U.S. 312, 321 (1988). There is no indication that the negative comments that the plaintiff wants to make about homosexuals or homosexuality names or otherwise targets an individual or is defamatory. Anyway, though Beauharnais v. Illinois, 343 U.S. 250 (1952), has never been overruled, no one thinks the First Amendment would today be interpreted to allow group defamation to be prohibited. American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 331 n. 3 (7th Cir. 1985), aff'd without opinion, 475 U.S. 1001 (1986); Abramson v. Pataki, 278 F.3d 93, 102 (2d Cir. 2002); Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1200 (9th Cir. 1989).

The school is on stronger ground in arguing that the rule strikes a reasonable balance between the competing interests-free speech and ordered learning-at stake in the case. But the plaintiff tells us that the Supreme Court has placed a thumb on the balance-that it has held that a school unable to prove that student speech will cause "disorder or disturbance," Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508 (1969), can ban such speech only if it either is lewd, Bethel School District No. 403 v. Fraser, 478 U.S. 675, 685 (1986) ("a sexually explicit monologue directed towards an unsuspecting audience of teenage students"), or advocates the consumption of illegal drugs. Morse v. Frederick, 127 S.Ct. 2618, 2626-27 (2007). He notes that Justice Alito's concurring opinion in Morse (joined by Justice Kennedy) disparages invocation of a school's "educational mission" as a ground for upholding restrictions on high-school students' freedom of ...


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