More T-Shirt Wars & the Day of Silence

Another court decision surfaces on the continuing t-shirt wars surrounding the National Day of Silence campaign and the promotion of tolerance of gay people in the nation's high schools.  This one documents the eruption of a t-shirt war at Neuqua Valley High School in Naperville, Illinois, a suburb of Chicago, where the Gay/Straight Alliance has been sponsoring a Day of Silence since 2003.  During the Day of Silence, those showing support for the school's sexual minority students don't speak unless called upon in class or questioned by a school official, and many wear t-shirts promoting tolerance.  In 2006, for example, the t-shirt read "Be Who You Are."

An organization opposed to tolerance for homosexuality, the Alliance Defense Fund, has inspired self-identified "Christian" students who are anti-gay to hold their own counter-day of silence the following day, and to wear t-shirts essentially promoting the Alliance Defense Fund, with the slogan "Day of Truth" on the front and "The Truth cannot be silenced" on the back.  Ironically, given the context and the ADF message, the t-shirts ADF distributes make no mention of homosexuality, since overtly anti-gay t-shirts have run into trouble with school administrators in the past.

But some anti-gay students want to take things into their own hands.  In 2006, at Neuqua Valley High, senior Heidi Zamecnik came to school the day after the Day of Silence wearing her own t-shirt that said "Be Happy, Not Gay" on the back.  The Dean of Students, Bryan Wells, told her that she had to remove the t-shirt.  She protested that she had no other clothing to wear, and he countered that "not gay" had to be removed from her slogan, suggesting that "be straight" would be OK, since it would not specifically denigrate any group.  But there was some confusion about how the controversy was to be resolved, apparently, and Zamecnik ended up walking around wearing a t-shirt with "not gay" crossed off but nothing in its place.  She sued for violation of her constitutional free speech rights.

A younger student, Alexander Nuxoll, who also desires to spout anti-gay rhetoric at school, sought  a preliminary injunction last year to be able to wear a "be happy, not gay" t-shirt on the "Day of Truth"  but lost that battle, and the 7th Circuit dismissed his appeal as "moot" after the fact.  Now he's back again, seeking an injunction to be able to communicate his anti-gay message not only for the scheduled 2008 Day of Silence but pretty much any time he wants to at school.  He wants to be able to bring in pre-printed cards with Biblical verses against homosexuality to distribute to other students, and he wants to be able to have the "Be Happy, Not Gay" slogan on his clothing.  And he argues that the Supreme Court's decision last year in Morse v. Frederick, upholding a school disciplining a student for carrying a sign while off-campus suggesting toleration of illegal drug use, somehow changes the legal calculus in his favor.

The school is willing to let anti-gay students wear the slogan "Be Happy, Be Straight," but is opposed to negative slogans as undermining its educational mission to promote tolerance and discourage disparaging statements about groups of students.  The school opposed Nuxoll's motion to amend and expand his complaint, but Judge William T. Hart ruled that Nuxoll can file an amended complaint, expanding the case beyond the Day of Truth observance.  However, Hart refused to issue a preliminary injunction concerning the 2008 observance specifically, finding that the school district has a sufficient basis in its educational mission to prohibit t-shirts that disparage, and that Morse does not provide substantive support for Nuxoll's arguments.

However, Hart was not willing to grant defendant Wells' motion to dismiss Zamecnik's damage claim on qualified immunity grounds in its entirety.  Hart ruled that Wells could constitutionally have "not gay" crossed off Zamecnik's t-shirt, but that the "refusal" to let her substitute the slogan "be straight" was probably constitutionally indefensible.  (Actually, Wells is arguing that he did allow that slogan, but somehow in the excitement of events it never got added to Z's t-shirt.)  Hart's refusal to dismiss that part of the damage claim on immunity grounds just means, at this point, that the court will have to sort out credibility to determine whether Z was actually forbidden from wearing the slogan, which seems unlikely given the undisputed evidence that Wells actually suggested it in place of the anti-gay slogan.

As this year's Day of Silence draws near, expect new chapters in the t-shirt wars.  Hart's opinion is available on Westlaw as Zamecnik v. Indian Pairie School District No. 204 Board of Education, 2007 WL 4569720 (N.D. Ill., Dec. 21, 2007).

Comments

[Jeff Rabor]

Do you think the school would approve of a t-shirt with something like "Fags Suck" since the statement is equally factual and disparaging?

Just a thought...

[Art Leonard]

I'm sure that the school administration in District 204 would not permit a t-shirt that says anything negative about particular students or groups of students. That seems to be their standard, which the judge approved in this case. While I'm uncomfortable with censorship of student speech, I'm sympathetic to the argument that personal or group attacks are inappropriate in a school setting, especially those calculated to inflict emotional harm or provoke a physical response.