Seventh Circuit Again Sides with Students’ Right to Wear Derogatory T-Shirt

In a sequel to a 2008 decision affirming the First Amendment rights of students to wear t-shirts stating “Be Happy, Not Gay,” the Seventh Circuit Court of Appeals found that the District Court properly granted summary judgment to the students and properly awarded the students $25 in Zamecnik v. Indian Prairie School District #204.

Since the 2008 ruling, the school district had an opportunity to present evidence showing that there was a reasonable belief that the school faced a threat of substantial disruption.  The school district presented three types of evidence to that end: evidence regarding prior incidents of harassment of homosexual students unrelated to the t-shirt at issue; evidence that the Plaintiff student had been threatened as a result of wearing the t-shirt; and an expert report stating that the phrase “Be Happy, Not Gay” is particularly insidious.  The Seventh Circuit found the evidence insufficient.

The evidence of past acts of harassment was considered negligible because the only testimony presented by the school district was that of an administrator who did not have first hand knowledge of the incidents.  The evidence of the disruption caused by those responding to the Plaintiff student was barred by the doctrine known as the “heckler’s veto.”  Under this doctrine, the disruption caused by the protected speech cannot be a ground for censoring the speech.  Rather than quieting the speaker, the school district is required to protect the speaker, i.e. the student wearing the t-shirt, from the hecklers.  Lastly, the Seventh Circuit rejected the expert report saying that it was unsupported by facts or data.

This decision again highlights the limitations school districts face when trying to be proactive in restricting arguably offensive student speech before it has a negative effect at school.