High School Student Can Wear ‘Be Happy, Not Gay’ T-Shirt
In a narrowly written opinion, the Seventh Circuit has granted permission to a Naperville high school student to wear a T-shirt with the slogan “Be Happy, Not Gay” as part of a “Day of Truth” at the school.
The ruling reverses the granting of a preliminary injunction by the trial court that upheld the Neuqua Valley High School’s ban of the T-shirt as being in violation of the school’s rule prohibiting “derogatory comments” written or oral “that refer to race, ethnicity, religion, gender, sexual orientation, or disability.”
The school deems the phrase “Be Happy, Not Gay” a derogatory comment on a particular orientation. Two years ago, the school prohibited the student from wearing the T-shirt. The “”Day of Truth”” follows by one day the “”Day of Silence,”” where students remain silent all day, except when called on in class, to advocate tolerance for homosexuals.
“The expression ‘Be Happy, Not Gay’ is a play on words, since ‘gay’ used to be an appropriate synonym for ‘happy’ but now has been appropriated to designate homosexual orientation,” Judge Posner wrote. “One cannot even be certain that it is a ‘derogatory’ comment; for ‘not gay’ is a synonym for ‘straight,’ yet the school has told us that it would not object to a T-shirt that said ‘Be Happy, Be Straight.’ It wouldn’t object because to advocate X is not necessarily to disparage.” The opinion found “Be Happy, Not Gay” is “only tepidly negative; ‘derogatory’ or ‘demeaning’ seems too strong a characterization.”
By reversing the trial court’s preliminary injunction that barred the student from wearing the T-shirt with the specific phrase “Be Happy, Not Gay,” the appellate court permitted the student to wear that shirt for this year’s “Truth Day.”” The school district could still attempt to justify its long-term ban, however, in further proceedings at the trial court level. “And further proceedings there will be,” Posner wrote. “The plaintiff will not be content with the limited relief that we are ordering. This is cause litigation. He will press for a broader injunction as permanent relief, though one that will fall short of permitting him to use fighting words against homosexuality, for he has conceded that the school can ban fighting words. The district judge will be required to strike a careful balance between the limited constitutional right of a high-school student to campaign inside the school against the sexual orientation of other students and the school’s interest in maintaining an atmosphere in which students are not distracted from their studies by wrenching debates over issues of personal identity.”
Nuxoll v. Indian Prairie School District #204, Seventh Cir. No. 08-1050, filed April 23, 2008.