It’s a good day when the Seventh Circuit hands you a First Amendment win.  It’s an even better day when Judge Posner writes the opinion.  And he did just that today when the Seventh Circuit ruled in Zamecnik v. Indian Prairie School District, that Neuqua Valley High School in Naperville, Illinois violated the First Amendment rights of two students by prohibiting them from sharing their views opposing homosexual conduct.  Here’s a brief background on the case: 

In April 2006, Heidi Zamecnik, a student at Neuqua Valley High School in Naperville, wore a T-shirt to school with the message “Be Happy, Not Gay.” She wore the shirt because the school permitted other students the previous day to wear shirts showing support for homosexual behavior as part of the “Day of Silence,” an event promoted by the Gay, Lesbian, Straight Education Network.

Even though Zamecnik’s shirt caused no disruptions, the school’s dean demanded later that day that she remove it or be sent home for the day. After speaking with Zamecnik’s mother by phone, all agreed to change the shirt to read, “Be Happy, Be Straight.” However, the dean did not abide by the agreement and instead had a female counselor cross the words “Not Gay” off Zamecnik’s shirt so it simply read “Be Happy.”

Alex Nuxoll, another student at Neuqua Valley High School, desired to express his perspective in similar fashion throughout the same year, including the school day following the “Day of Silence.”

In ruling for the students, Judge Posner writes: 

Thus a school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality. 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.

After discussing other cases in which secondary schools have banned student speech, Judge Posner writes: 

These cases, more extreme than ours, do not establish a generalized “hurt feelings” defense to a high school’s violation of the First Amendment rights of its students.  “A particular form of harassment or intimidation can be regulated . . . only if . . . the speech at issue gives rise to a well-founded fear of disruption or interference with the rights of others.” Sypniewski v. Warren Hills Regional Bd. of Education, 307 F.3d 243, 264-65 (3d Cir. 2002). The same court, in Saxe v. State College Area School District, 240 F.3d 200, 209 (3d Cir. 2001), found “little basis for the District Court’s sweeping assertion that ‘harassment’—at least when it consists of speech targeted solely on the basis of its expressive content—’has never been considered to be protected activity under the First Amendment.’ Such a categorical rule is without precedent in the decisions of the Supreme Court or this Court, and it belies the very real tension between antiharassment laws and the Constitution’s guarantee of freedom of speech.”

In other words, only severe, pervasive, and objectively unreasonable harassment is sanctionable by schools, as we’ve argued before in university speech code cases.  This is a good win for high school student speech and one that will also impact college campuses in Illinois, Indiana and Wisconsin.