Another Shot in the T-Shirt Wars: 7th Circuit Affirms Damage Award to High-Schoolers Who Sought to Wear Anti-Gay T-Shirts

Each year high school students around the country organize a National Day of Silence to provide a vehicle for students and faculty to show empathy for sexual minority students who may feel silenced by the generalized hostility they experience in that tense adolescent setting.  And it seems that each year, some students, egged on by religiously-conservative parents and anti-gay organizations, seek to counter the effect of the National Day of Silence by wearing t-shirts with an anti-gay message.  Sometimes, school adminstrators seeking to avoid confrontation and controversy, order the students to remove those t-shirts, and then the anti-gay litigation organizations — most frequently, Alliance Defense Fund — get involved and constitutional litigation results.

On March 1, the latest judicial shot in this war was fired by Richard Posner for a panel of the U.S. Court of Appeals for the 7th Circuit in Zamecnik v. Indian Prairie School District #204, 2011 Westlaw 692059, as the court affirmed the district court's award of a small amount of damages to two high school students who wanted to wear t-shirts stating "Be Happy, Not Gay" in order to express their disagreement with the sentiments behind the National Day of Silence, and the award of prospective injunctive relief against the school district to ensure that students could wear such t-shirts in the future.

Interestingly, Posner does not disagree with the proposition that school authorities could prevent students from wearing t-shirts that would cross the threshold of "fighting words" in order to prevent disruption of the academic program, and I don't think he is necessarily disputing the conclusion of the 9th Circuit, in Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), vacated as moot, 549 U.S. 1262 (2007), that some forms of anti-gay student expression might be proscribed on the grounds that they would inflict sufficient upset and disruption as to deprive sexual minority students of their educational rights in public schools, but this decision turns on the panel's conclusion, tentatively expressed in an earlier ruling and now reiterated in rejecting the school district's appeal of the district court's verdict and remedy, that the slogan "Be Happy, Not Gay" is too "tepid" to merit such extreme reactions.

Reflecting back on the earlier ruling, Posner wrote, "The school argued (and still argues) that banning 'Be Happy, Not Gay' was just a matter of protecting the 'rights' of the students against whom derogatory comments are directed. But people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.  Although tolerance of homosexuality has grown, gay marriage remains highly controversial.  Today's high school students may soon find themselves, as voters, asked to vote on whether to approve gay marriage, or to vote for candidates who approve of it, or ones who disapprove."  But, continued Posner, while the school might be justified in banning speech that would be calculated to stimulate a disruptive response, "'Be Happy, Not Gay' is not an instance of fighting words.  To justify prohibiting their display the school would have to present 'facts which might reasonably lead school officials to forecast substantial disruption.'  Such facts might include a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school — but the school had presented no such facts in response to the motion for a preliminary injunction."  In the absence of such evidence, "we described 'Be Happy, Not Gay' as 'only tepidly negative,' saying that 'derogatory' or 'demeaning' seemed to strong a characterization."  The court had thought it "speculative" that letting plaintiffs wear the t-shirt slogans would have a disruptive tendency.  The 7th Circuit is not willing to establish a "generalized 'hurt feelings' defensen to a high school's violation of the First Amendment rights of its students."

The heart of this new decision might be Posner's review of the evidence presented on the merits, which showed to his satisfaction that the district court had a basis for determining that allowing the wearing of that slogan was not going to have a disruptive effect.  He is particularly withering in dismissing the testimony of the only expert witness offered by the school district, a sociologist, who devoted 29 of the 38 pages of his written "expert" report to rehearsing his credentials, but "less than two and half pages" to his "analysis and opinions," which then, according to Posner, are mere assertions not backed up by anything more than the expert's opinion.

Point 7 of the report submitted by the "expert" stated: "the phrase 'be happy, not gay' is not 'tepid' in a public school setting'" and indeed "is particularly insidious because it references a long-standing stereotype that gay people are unhappy, yet appears to be a simple play on words."   Says Posner: "Point 7, however, which is the punchline, comes out of nowhere.  There is nothing in the report to indicate that Russell [the expert] knows anything about Neuqua Valley High School, for there is no reference to the school in the report.  No example is given of 'particularly insidious' statements about homosexuals.  No example is given of a 'homophobic slur' or 'derogatory remark' about them that has ever been uttered in any school, or elsewhere for that matter.  Though the report calls 'be happy, not gay' particularly insidious, it does not indicate what effects it would be likely to have on homosexual students.  It gives no indication of what kind of data or study or model Russell uses or other researchers use to base a prediction of harm to homosexual students on particular 'negative comments.'  No metholody is described. No similar research is described."  Thus, concluded Posner, under Federal Rule 702, this is "as thin an expert-witness report as we've seen."

The court awarded $25 to each of the two students in the case, obviously more symbolic than actually compensatory.  "Both plaintiffs were injured," wrote Posner, "though only slightly (but $25 does not exaggerate the harm), by the school's violation of their constitutional rights.  Zamecnik's shirt was defaced and Nuxoll's desire to wear the t-shirt on multiple occasions in 2007 was thwarted by fear of punishment."  The court of appeals panel concluded that the district judge was correct to grant summary judgment in favor of the plaintiffs, and found the relief awarded to them to be justified and the prospective injunctive relief not mooted by their graduation, since it was possible that other students would seek to wear t-shirts bearing this or similarly-tepid slogans in the future.

One suspects Posner graduated from high school too long ago to appreciate the significance that the psychological impact of letting students wear these slogans at school would have on closeted gay kids.  But then it has become an article of Republican faith — at least in the U.S. Senate — that federal judges are not supposed to give any weight to empathy for the human beings affected by their rulings, although somehow it seems that empathy for corporations is high on the list of judicial qualifications….


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