Nuxoll Ex Rel. Nuxoll v. Indian Prairie Sch. Dist.

and, more, what is impact cap leaves NUXOLL, friends, Alexander his next why

it unclear the damages allocated Penny Nuxoll, Michael way it of what NUXOLL did. None we have said Plaintiff-Appellant, limits the district court’s discretion on re mand, and what we none of have said requires simply a new trial. We ask the INDIAN PRAIRIE SCHOOL allocation, district court to make then al., # et DISTRICT explain why it has done so. In the final Defendants-Appellees. analysis, we tell whether cannot the dis judge’s trict of damages allocation falls No. 08-1050. within her on this discretion record. See United of Appeals, States Court Invs., Inc., Corp.

DWG v. Granada Circuit. Seventh (6th Cir.1992); see also Music, Bridgeport Inc. Universal-MCA Argued April 2008. Inc., Publ’g, Music April Decided 2008.* Cir.2007) (noting attorney-fee con text that we “cannot know for sure”

whether the court abused its discretion

until grounds and “unless such are made (internal

explicit”) quotation marks omit-

ted); (“[T]he id. prohibits court’s silence

us from examining the soundness of its (internal

discretionary judgment.”) quota- omitted); tion marks Sprint/United cf. — Mendelsohn,

Mgmt. U.S.-, Co. v. (2008).

III. reasons,

For these we affirm in part and in part.

reverse * opinion being transcript released in engage tion to activity enable him to in an (with follow) printed version to April scheduled for 28. appellant seeking a preliminary injunc-

669 (argued), Nathan W. Kellum Jonathan Fund, Scruggs, Memphis, Alliance Defense TN, Plaintiff-Appellant. (argued), F. Canna Canna & John Can- na, Park, IL, Defendants-Ap- Orland pellees. POSNER, KANNE,

Before ROVNER, Judges. Circuit POSNER, Judge. Circuit Neuqua plaintiff, sophomore The a School, large public high Valley High Illinois, Naperville, brought has district and school suit the school violating contending that officials him by forbidding right free negative make comments at school homosexuality. pre He moved for denied, injunction, liminary which was parties tacitly denial. appeals he to a agree that he is entitled injunction if has shown reasonable he right that his free probability be being violated. of First Amendment lieves that “the loss freedoms, minimal periods for even time, irrepara unquestionably constitutes Burns, injury.” Elrod v. ble L.Ed.2d (who years ago opinion); co-plaintiff see also Christian Le Two since (plurality Walker, gal Society graduated 453 F.3d longer and as a result is no (7th relief) Cir.2006); Distributing Connection seeking injunctive wore shirt Reno, Cir. Co. v. Silence, read Alli- “My Straight (2d 1998); 67, Safir, 70 Tunick v. 209 F.3d ance” on front Happy, the and “Be Not Cir.2000). not tried The school has to Gay” on the back. A school official had grant show that the of in phrase Gay” the “Not inked out. Last junction, narrowly drafted, if least year neither wore a shirt to would cause harm it. irreparable So phrase, contained the or otherwise tried to the balance of harms inclines toward the Silence, counter the of for fear of plaintiff, pre and therefore the school can being disciplined. only if demonstrably vail his claim is weak. slogans None of the so far mentioned Gay, Lesbian, A private group called the has been banned the school authorities Straight promotes Education Network except Happy, Gay.” “Be Not The an annual of “Day event called Silence” bases forbidding the ban a school rule intended draw attention to comments,” written, “derogatory oral or of See harassment homosexuals. www. race, “that ethnicity, gen- refer religion, (visited 5, 2008). dayofsilence.org Apr. der, orientation, disability.” sexual or The The behind the name idea is that homosex- deems de- uals are silenced harassment and other rogatory particular comment on a sexual goal “Day discrimination. The of position orientation. The school’s is that is not homosexuality Silence” to advocate group may members of listed comment but to advocate tolerance for homosexuals. favorably may about their group own A Neuqua Valley student club at High not a derogatory make comment about School called the Gay/Straight Alliance another group. The rule does not apply to “Day sponsors the of Silence” made of comments outside school. participate by school. Students remaining rule, The plaintiff challenges the well as throughout day except silent when class, as in upon teachers, application its this case. He though called believes some of own that the First part their observance of Amendment him to entitles make, “Day Silence,” out, of not call on whether any nega students participating the observance. tive Some stu- comments he wants about the mem faculty wear day dents T-shirts that bers of a group, including listed homosexu legends (a such as “Be You Who Are.” group als defined of course of legends None advocates homosexu- orientation), provided they are inflam not ality heterosexuality. Indeed, or criticizes is, matory words—that not “fighting opposition persons to harassment of who words,” likely provoke words a violent happen to be homosexual is consistent with reaction and hence a breach of peace. disapproval homosexuality of itself. placed Court has fighting words protection outside the of First is one the students who Chaplinsky Hamp Amendment. v. New disapprove homosexuality. Some of shire, 568, 572-73, 766, 315 U.S. 62 (see S.Ct. participate “Day them of Truth” (1942) (Jehovah’s (visited 2008)) L.Ed. 1031 Witness www.dayoftruth.org Apr. government called a official “a God dam day “Day held on first school after Fascist”). ned They racketeer” and “a damned sup- Silence.” recommend that porters Although subsequent wear a “day T-shirt reads invocations failed, truth” and “The Truth cannot be silenced.” doctrine have e.g., City R.A.V. v. Such comments Paul, per- norm. can strike a 505 U.S. St. Johnson, (1992); Texas v. at the his being. son core of 397, 409-10, 109 S.Ct. 491 U.S. evidence, There is it is though sugges (1989); California, v. Cohen L.Ed.2d 342 conclusive, rather tive than that adolescent 15, 20-21, subjected derogatory com Smith, (1971); L.Ed.2d 284 Collin may ments about such characteristics find (7th Cir.1978); Sandul it even harder than usual to concentrate Larion, Cir. perform up their studies 1997), plaintiff concedes its continued expectations. David See M. Hu- could further concedes that he validity and al., Harassment, “Experiences ebner et go to Hell” on “homosexuals inscribe Discrimination, Physical Violence fighting those are his T-shirt because Men,” Among Young Gay and Bisexual prohibited despite can words and so be 2004); (July Health Am. J. Public arguable expressive their content Brown, Widney & Michael Bochenek A. City R.A.V. v. St. support. theological Watch, “Hatred in Rights Human Paul, 112 S.Ct. supra, U.S. Hallways: Violence and Discrimination 2538. Lesbian, Bisexual, Gay, Against heavy A prudent. The concession is Transgender in Students U.S. Schools” 1-3 regu hand on the federal constitutional (2001), www.hrw.org/reports/2001/uslgbV by au speech lation of student (visited 2008); Apr. toc.htm American little thorities would make sense. University Association of Edu Women can contribution kids make Foundation, Hallways: cational “Hostile in marketplace opinions ideas Bullying, Teasing, and Sexual Harassment in countervailing and a school’s modest (2001), in www.aauw.org/ from of School” 37 protecting terest in its students (visit- un by their classmates is speech research/upload/hostilehallways.pdf fensive Granted, 2008). 18-year-olds because deniable. Valley High Apr. Neuqua ed vote, high-school can now students is huge School students —and the —4200 in an should not be intellectual “raised wounding concerning potential for bubble,” as we American put personal listed in the characteristics Amusement Machine Association Nor, great. rule is on the benefits Kendrick, Cir. balance, side of First Amendment 2001), of for which would be effect hallway high-school uninhibited student public bidding all discussion issues sexuality carried debate over —whether High Neuqua Valley But such students. T-shirts, dueling of dueling out form It has not tried to do that. has School banners, Bi- dueling pamphlets, annotated (1) prohibited derogatory comments bles, oratory soapbox or essential —an deeply unalterable or otherwise of the fran- preparation for exercise about personal characteristics rooted chise. including perhaps which most people, — (within judicial A of hands off policy especially school including —adolescent reason) regulation of student children, highly People are sensitive. much recommend it. On the one upset easily are comments hand, incompetent to tell judges race, sex, etc., including their sexu their way to run authorities how schools orientation, people al most condu- preserve atmosphere that will major components of their these are hand the learning; cive to the other identity more so than personal —none freedom to de- of adolescents’ suppression that deviates from sexual orientation often it sexuality protect is not one nation’s bate must — problems, problem legal or a that can invasion of pressing rights by their other stu- judicial federal by aggressive legal be solved dents. But do people not have a urgent problem, A far more right prevent intervention. criticism of their beliefs many high dropout public rates way for that matter their of life. R.A.V. v. schools, Department Paul, 394; United States of Edu- City supra, St. U.S. cation National Center Education Sta- Barry, Boos v. tistics, “Dropout Rates the United (1988). is no There (June 2007), 2005” 3-5 nces. States: negative indication that the comments (visited ed.gov/pubs2007/2007059.pdf Apr. to make wants about homosex- 2008), solved be First homosexuality uals or names or otherwise free-for-alls, though happily Amendment targets defamatory. an individual or is drop-out Neuqua Valley High rate at Anyway, Illinois, though Beauharnais v. School, serving wealthy city as it does 96 L.Ed. 919 Naperville, negligible. overruled, has never been one no today thinks the First Amendment would may to an

It not be obvious outsider how interpreted be allow group defamation a T-shirt on which written slogan prohibited. to be American Booksellers poison the Hudnut, 323, Ass’n v. 771 F.2d n. 3 331 atmosphere, but the outsider is—an (7th Cir.1985), opinion, aff'd without 475 And of the plaintiff outsider. course 1001, 1172, U.S. 106 291 S.Ct. 89 L.Ed.2d want to stop doesn’t there. He wants to (1986); Pataki, 93, Abramson 278 F.3d emphatical- T-shirts that more wear make (2d Cir.2002); 102 Dworkin v. Hustler negative ly comments about homosexuali- Inc., Magazine 1188, F.2d 867 1200 ty, only that provided the comments do not Cir.1989). separates nonbelligerent the line that cross words, negative fighting comments from on stronger ground school is may wherever that line He also be. wants arguing that strikes a reasonable provide to distribute Bibles to students balance competing between the interests— documentary support for views about speech free and ordered learning —at homosexuality. We foresee deteriora- stake in plaintiff the case. But the tells us ability tion to educate its that placed negative if comments on homo- thumb on the balance—that it has held sexuality by students like Nuxoll who be- that prove a school unable that student that the lieve Bible is the word of God to speech will cause “disorder or distur- interpreted literally negative be incite bance,” Tinker v. Des Independent Moines by comments the Bible students who District, 503, Community School 393 U.S. either that believe there no God or that 508, 21 L.Ed.2d 731 interpreted Bible figurative- should be can ban such if it either is ly. Mutual respect and forbearance en- lewd, Bethel School District No. 403 by the may forced well be essential Fraser, a minimally maintenance of deco- (“a 92 L.Ed.2d sexually 549 explicit atmosphere learning. rous monologue directed towards an unsuspect ing teenage students”), But we cannot audience of ad accept defendants’ or consumption drugs. that vocates the argument illegal the rule is valid all because — Frederick, protect “rights” -, it Morse v. does U.S. 127 stu- 2626-27, against derogatory dents whom comments 168 L.Ed.2d (2007). are directed. Of can— that course He notes Justice con- Alito’s Leonard, (joined by Morse Justice Walker v. curring opinion (3d invocation of a Kennedy) disparages Cir.2003); Lovell v. Poway Lovell a ground school’s “educational mission” District, School 90 F.3d Unified high-school restrictions on upholding (9th Cir.1996). itBut follow does not speech; opinion freedom of students’ features missing those “strikes at that such invocation warns this case the school must prove Amendment,” of the First id. at very heart suppress it wants will cause just though may one doubt how close disturbance,” “disorder or or that “mate- by high-school students debate rially disrupts classwork or involves sub- really the heart of the preferences is to materially stantial disorder” “would Amendment. First substantially disrupt the work and disci- calls Justice Alito’s pline the school.” opinion in “controlling” concurrence the Kennedy Alito and

Morse because Justices three formulas are found in All majority, part were five-Justice so Tinker Moines Independent v. Des Com that their votes were crucial the deci District, munity supra, School they joined majority opin But sion. quite but that was a different case decision, ion, just doing not so from The school discriminating this. was it a majority opinion made view, point a particular namely (as merely, as believes does opposition expressed to the Vietnam war Circuit, v. Socorro Inde the Fifth Ponce wearing of black Id. armbands. District, pendent School 510-11, parallel S.Ct. 733. The (5th Cir.2007)), plurality opinion. a rule Tinker in this would be 530, Pallasch, v. 339 F.3d 531-32 McKevitt just about negative forbade comments het Cir.2003). (7th concurring Justices erosexuality just homosexuality. emphasize allowing wanted to that And preceded Tinker Fraser Morse. speech school to forbid student that en Taking law as a we don’t the case whole drugs use of courages illegal the Court required prove think a that giving schools carte blanche to was unless speech issue forbidden And regulate speech. they student were ensue. consequences serious will permissi fact their own view of expressing (Scott rarely be proved. That could v. scope regulation. of such ble County, 324 F.3d School Board Alachua of very If the schoolchildren are (11th 1246, Cir.2003), and West v. 1249 young speech or the is not of kind that 260, Derby No. School District 206 Unified (both fea protects the First Amendment (10th Cir.2000) 1358, F.3d 1365-66 —cases v. tures of our decision in Brandt Board of the Confeder display that involved the of City Chicago, 480 F.3d Education of of racially ate mixed schools—illus flag (7th Cir.2007), which, 460, as the 465-66 case.) enough trate It the rare notes, correctly distinguishes that might “facts which rea present one), has pretty from this the school sonably school officials to forecast lead id.; Muller Muller v. free hand. See v. disruption.” Boucher School substantial School, 1530, 98 Lighthouse F.3d Jefferson Greenfield, Board District 134 School (7th Cir.1996); Baxter Baxter of of 1538-39 (7th Cir.1998); 821, Walker- F.3d 728, 26 County Corp., v. School F.3d Vigo Leonard, supra, rel. Walker v. Serrano ex (7th Cir.1994); Fort Blau v. Thomas 738 416; LaVine v. Blaine School 325 F.3d at District, 401 F.3d 389 Public School (9th Cir.2001). (6th District, Cir.2005); rel. 257 989 Walker-Serrano ex 674 391-92, 2538; proof of 112 Hedges

This tells us what standard S.Ct. v. Wau disruption”? is. But “substantial what is Community conda School Unit District Must it distur (7th Cir.1993). amount “disorder or No. 9 F.3d bance”? disrupted Must classwork be protected The list characteristics in the if severely? so how We know from Morse full appears spectrum cover the Supreme that the Court let a school highly personal-identity sensitive charac speech ban outside —even And on derogatory teristics. the ban premises the use encourages —that general. say words is Nuxoll can’t “homo illegal drugs, having without the school’s are going (though sexuals to Hell” he can prove relation causal between the heterosexuality advocate on religious use. too drug We know that grounds) and cannot said back to him be avoiding violence, if that is what “disorder “homophobes are closeted homosexu connotes, or disturbance” is not a school’s als.” The “derogatory school’s rule bans only substantial concern. was Violence race, ... ethnicity, comments that refer to Morse, Fraser, not the issue in or in religion, gender, orientation, or dis lewd-speech fact case. In one of the con ability.” expressed by cerns We that a grant any rule which forbids Morse 'psychological was with the effects remarks, narrowly class of however de drugs. 2628-29; see also justification, fined and whatever the re Board, Canady v. Bossier Parish School free speech. stricts But that observation Cir.2001); cf. Ver beginning is the constitutional anal Acton, nonia School District 47J ysis, not the end. The number of restric 661-62, 646, 656, 115 S.Ct. tions freedom speech that have sur (1995). Imagine psycho L.Ed.2d 564 vived challenge legion. constitutional logical effects if the a T-shirt wore restriction, particular true, This it is on which was written “blacks have lower if being imposed not wash it were IQs than or “a place whites” woman’s is in adults, 2538; id. at Rosen the home.” berger Rector & University Visitors of From Morse Fraser we infer Virginia, 515 U.S. if there is reason to think L.Ed.2d particular type of student will lead can such handle remarks better than kids scores, to a decline in students’ test an can and because adult debates on social truancy, upsurge symptoms other issues are more than valuable debates a sick symptoms of sub therefore school— among probably children. It would not stantial disruption school can forbid —the it wash if were to extended students when the speech. by rule challenged The school, they are outside of the where stu plaintiff appears satisfy to this test. It dents who would be hurt the remarks a seeks to maintain civilized envi exposure could avoid them. to It would ronment to it learning, conducive does not if wash the school understood “deroga so in way. an even-handed It if is not as tory any comments” to embrace statement derogatory com forbade very that could be construed sensi refer, say, ments that religion, prohi to a tive critical protected of one of the signal bition that a being would belief that (That may, group see, identities. as we’ll religious special protection. merits See be a problem application the school’s Lamb’s Chapel v. Center Moriches Union case.) District, of its rule to the this Free School facts of But U.S. (1993); high-school adults, students are not Paul, City R.A. V v. supra, halls, St. are public meeting schools not chil- (7th Addison, 248 F.3d 619-20 Cir. by adults taught in school to be are dren Glade, 2001); City oth- Belle attacking each Burton practice than rather (11th words, Cir.1999), au- and school but the wounding 1200-01 er with relationship any a lan protective lawyer propose have did not plaintiffs thorities Because to all the students. responsibility judge. litigant A guage to the district we relationship responsibility, injunction a preliminary claim for feeble is invalidated that if the rule concerned can’t articulate what he wants when he edge, a razor’s placed on will be the school Wright, 11A Alan enjoined. Cf. Charles it is offensive comments if it bans where Miller, Kane, Mary Kay Fed Arthur R. & if it fails speech and violating free sued for § pp. eral Practice and Procedure com- from offensive protect (2d Simon, ed.2007); Wolgin cf. 212-13 for it is sued by other students ments (8th Cir.1983). harassment, as in violating laws therefore, concedes, that the most 446, 457 Podlesny, 92 F.3d Nabozny v. injunction that would to is an he is entitled Cir.1996). Not Happy, him to stencil “Be permit mindful that the areWe “Day Truth” Gay” on T-shirt on the his regulation were that “if a in Tinker said Gay” deletion of “Not forcing because forbidding dis- officials adopted by school derogatory-com- the school’s stretches ... it conflict Vietnam cussion rule too far. must consider ments We would regulation that the obvious would be carefully, the term “de- argument of stu- rights violate the constitutional unavoidably vague. rogatory comments” dents, justified not be at least if it could (If formulation could be substi- a clearer activities the students’ showing tuted, might be invalid because disrupt substantially materially and sug- parties do not vagueness, its but of the school.” 393 discipline the work formulations.) gest alternative But to ban all 89 S.Ct. 733. U.S. at Happy, expression “Be war would of the Vietnam discussion words, “gay” since used to be play taking sides—would have reality have been now “happy” for synonym approximate government delighted —because designate homo- appropriated to has been started, main- the war was debate over even be One cannot orientation. oppo- tained, by the war’s and escalated comment; “derogatory” that it is a certain nents. “straight,” synonym gay” “not is not entitled So the that would has told us yet the school the rule. injunction against Be object a T-shirt that said argu And, at oral lawyer conceded object because to It Straight.” wouldn’t ment, prelimi to a he entitled neither is necessarily disparage X not advocate is the defendants’ injunction against nary you may be Pepsi” “drink you say Y. If “negative com making forbidding his over Pepsi your preference showing homosexuality short ments” about deriding necessarily Coke, are not you terms only are such words.” Not “fighting Happy, “Be odd to call It would be Coke. an terms of operative to be the vague too about derogatory Pepsi” a comment Drink a detailed must contain injunction, which Coke. terms, Fed. of its specific statement sensi- vital. Given kids’ But is context (C); 65(d)(1)(A), v. Les Schmidt R.Civ.P. sexual orientation tivity about their 473, 475-77, sard, preferences their insensitivity about their curiam); Hispan (per L.Ed.2d 661 analogy drinks, Pepsi-Coke in Village soft County v. DuPage ics United plaintiff, ordering. misses mark. The like the limited that we are This relief is participate “Day students who litigation. press cause He will for a broad- Truth,” expressing disapproval relief, homo- injunction permanent er as though everyone sexuality, as knows. No one one that fall short of him permitting heterosexuality talk up bothers to who fighting fight against use words denigrating isn’t homosexual- interested homosexuality, for he has conceded that ity. plaintiff himself describes “Be fighting the school can ban words. The Gay” Happy, “negative Not as one of the judge required district will be to strike a homosexuality that comments” he careful balance between the limited consti- constitutionally privi- considers himself right high-school tutional of a student to leged position He in better make. campaign inside the the sex- than to interpret meaning we are of his ual orientation of other students and the own comment. in maintaining school’s interest an atmo- sphere in which

Nevertheless, students are distract- Gay” “Be Not Happy, ed from their studies wrenching de- tepidly negative; “derogatory” or personal identity. bates over strong a issues “demeaning” seems too character- ization. one in a expect As ROVNER, Judge, Circuit concurring School, Neuqua Valley High the size of judgment. there have been incidents of harassment of homosexual students. But is highly I agree that we should reverse and re- that speculative allowing the to mand this court case district says wear a that T-shirt Not injunction instructions to enter an allowing Gay” tendency would have even a slight to Nuxoll bearing to wear shirt the slogan incidents, provoke such or for that matter “Be Happy, day Not on the school to poison the atmosphere. educational following the of Silence. view this is, Speculation that it might under the as a simple case. We are bound ruling precedents, scanty and on the rec- Indep. of Tinker Des Cmty. Moines compiled ord thus far in litigation, too Dist., Sch.

thin hang a prohibition reed on which to L.Ed.2d majori- that the of the exercise of a free speech. student’s ty portrays in such a convoluted fashion We are therefore constrained to reverse that the discussion folds in on itself like a the district court’s order with directions to Mobius strip.1 straight-forwardly Tinker (the enter “Day forthwith of Truth” that, tells us in order for school officials to 28) April scheduled for in- justify prohibition of a particular expres- junction limited the application however to sion opinion, they able must be to show rule to a T-shirt that recites this “action was something caused “Be Happy, Gay.” The school has more than a mere desire to avoid the justify failed to legend, ban of discomfort unpleasantness always though fuller record that will be com- accompany unpopular viewpoint.” piled in proceedings the further the case Tinker, U.S. at 89 S.Ct. 733. Under may cast the issue in a light. different may express their opinions, even And proceedings subjects, long further there will be. controversial so will not be content with do ‘materially so “without substantial- “continuous, strip 1. A Unabridged Mobius is a one-sided to the other.” Webster’s Dictio- by twisting (RHR Press, surface formed end one of a rect- nary English Language, of the ° angular strip through longitu- 180 about the 2001). strip attaching dinal axis of the and this end particular of all discussion sub requirements with banned of interfering] the ly majority of discipline operation ject. attempts to turn Tink appropriate the colliding with viewpoint and without that a by stating the school’ er into a case 512-13, at others.” 393 U.S. rights of on “all of the school ban discussion Viet Byars, (quoting Burnside reality taking nam war would have been (5th Cir.1966)).2 The school sides,” supra at the debate any facts demonstrate[d] has “not district was op the war initiated those over might reasonably have led which strip. And here posed to it. is the Mobius disrup- to forecast substantial authorities majority’s reasoning, allowing the Under with school or material interference tion of any subject debate on would consti open activities,” disruption and no such occurred of taking quo. tute the side the anti-staiws co-plaintiff years earlier when Nuxoll’s two simply open could be Open debate never the following a shirt wore such debate; sides,” “taking it would constitute Tinker, 393 U.S. Silence. taking party particular the side Therefore, particular this S.Ct. 733. status opposed quo. Open to the debate must be allowed. expression preserved by the First very the value the characteriza- Contrary majority’s yet majority and reduces Amendment the tion, viewpoint is not case Tinker about viewpoint expression. it to stealth distinguishable and discrimination majority expends trying much ink to strike Tinker Supra the instant at 8. case. of free a balance between the interests wear wished to involved who ordered speech learning, discussion the Vietnam protest black armbands to the remarkably sounds similar which the not allow war. School officials would Kuhlmeier, rule of Hazelwood Sch. Dist. v. although they did allow students armbands symbols or con- political other to wear where Court set Supreme significance, including political troversial school-sponsored balancing Cross, a buttons and the Iron campaign involve school- speech. This does not Nazism. is associated with symbol no need for sponsored speech, there is prohibition concluded that “the The Court balance; a new us to strike opinion, expression particular one already applicable set stan has necessary without evidence that it is least dard Tinker. material interfer- to avoid and substantial Moreover, my heartily disagree is not discipline, ence with schoolwork or about value of brothers Tinker, constitutionally permissible.” students, rights high Tinker reveals 89 S.Ct. 733. majority denigrates. repeatedly which allowed nothing about whether the school are often 7 and Youth Supra, at 10. opinion symbols expressions or other Anyone change. vanguard social in the Viet- favorable to U.S. involvement paying not been thinks otherwise has who war, to read and so there is no reason nam movement, civil rights attention It is viewpoint. a case Tinker as movement, anti-war rights women’s as a dis- appropriately characterized more and the Iraq, for Vietnam protests subject matter discrimina- cussion about primaries where presidential recent tion, not limited although opinion youth having and the vote youth voice circumstance the school where “substantial dard. I will hereafter use the term 2. disruption” Tinker stan- as shorthand for the Peterson, are impact. youth Hodgkins And now substantial Cir.2004) (“The of broad, change strength our de-

leading a societal attitude mocracy homosexuals, forming citizenry alliances on a depends knows towards freedoms, lesbian, bisexual, transgen- its among gay, and understands exercises (“LGBT”) responsibly, guards them them vigi- dered and heterosexual lantly. Young related to ... importance suddenly to issues of adults are not discuss They granted have initiated a the full panoply sexual orientation. of constitutional partici- rights day they which Nuxoll wishes to the dialogue age attain the of pate. young majority. to whom ma- We not permit adults the but expect The youths are to jority as “kids” “children” exercise those refers liberties-to learn themselves, already eligible, years a few to think for give either short to voice to vote, opinions, to con- hear away being eligible from to their to and evaluate com- tract, marry, military, peting points might to to serve of view-so that prose- age eighteen and to be tried as criminal to vote right adults attain To treat them as children in need right.”) cutions. tools to exercise that protection controversy, blithely majority subject to The also treats the mat- than dismiss their views as less valuable lacking impor- ter of orientation as adults, supra contrary tance, that, those of is failing apparently to notice the values the First Amendment. Jus- two, last decade or state and national eloquently tice Brennan stated this for legislatures have been awash with debates forty years ago, than Court more and his placed rights- over limits on the today: ring especially words true persons, presidential LGBT and that can- protection subjected are vigilant constitutional didates often to litmus tests very vital than in Finally, may freedoms nowhere more on these issues. there community important of American schools. be no more time than adoles- peculiarly contemplate The classroom is the market- cence for individuals to issues place relating identity. of ideas. The Nation’s future de- to their sexual These pends through important trained upon leaders issues and the voices of exchange young wide to that robust much exposure adults add to the discussion.3 of ideas which truth of a discovers out My brothers also wonder whether this tongues, rather than multitude slogan actually derogatory, noting that it through any kind of authoritative selec- play “happy” “gay.” is a on the words tion. Supra play 12. That is a on words Tinker, (quot- U.S. at not change meaning, S.Ct. 733 does its ultimate how- ing Keyishian Regents, Nuxoll us that Board ever. tells he intends the slogan convey U.S. the message that “homo- (1967)) (internal quotation contrary citations and sexual behavior the teach- omitted). bible, Hodgkins ings partici- marks See also ex rel. of the damaging to 3. majority request stage also mischaracterizes for relief at this to a plaintiff's position seeking as one the outer injunction that allow him wear his Chaplinsky "fighting limits of the doc- words” day shirt on the follow- Chaplinsky Hampshire, trine. See v. New ing of Silence. There no need (1942). 86 L.Ed. 1031 policy any whole or us address the as a True, ultimately expand seeks to point litigation. other at this speech regarding religious the limits his my therefore reserve for another time own homosexuality, views of he concedes that grave Constitutionality doubts as to Tinker, Chaplinsky. he is limited policy face. its Moreover, argument, at oral he limited his significant not There is a difference process. and does society large, and pants brief, expressing religiously-based his between one’s Throughout happiness.” lead to criticizing homosexuality targeting homosexual and disapproval to be he claims although Though and “behavior” for harassment. “conduct” LGBT students students, polemic four-word offensive to most LGBT probably and in- convey message this little to does a likely the former is not itself to create identity. attack homosexual seems to stead Certainly, hostile environment. this is in- Nonetheless, clearly statement Nabozny Podlesny, a like Teenag- derogate homosexuals. tended to (7th Cir.1996), where students re- a “gay” the word as today often use ers peatedly gay “faggot,” called classmate They disparagement. term of generic him, him, spit on threw him into a struck gay” is so as say, “That sweater might urinal, degree beat him to such a that he garment. look of the way insulting bleeding, subjected internal and suffered really a statement way, this Nuxoll’s In rape him to a mock in a classroom while “gay” for- double-play on words because people laughed few dozen looked on and usage, in common merly “happy” meant enduring and him. So severe and constant meaning in addition to “gay,” now and abuse, Nabozny was his classmates’ gener- used as a is also often “homosexual” suicide. The defendants attempted twice easily fits the statement al insult. Nuxoll’s unlikely here are to find themselves on the “disparaging” definition Nabozny, edge” supra “razor’s listen- that standard for most would meet a result of Nuxoll’s t-shirt. Moreover, gay” is the idea that “not ers. young what lesson would we teach And 12, fails “straight,” supra at synonym importance about the of our Consti- adults many nuances of sexual recognize judiciary rights tutional if the took apparent have been since orientation that approach regulation off’ to school “hands Kinsey set forth when Alfred first by my Supra favored brothers? Scale, defining a Kinsey his zero-to-six Jackson, I turn to at 5.4 This time Justice sexuality exclusively continuum of sixty more than speaking for the Court exclusively ho- on one end to heterosexual years ago: scarcely I on the other end. mosexual Amendment, ap- as now The Fourteenth Pepsi/Coke begin know where to with the States, citizen protects plied majority seems to analogy and even the all its itself and State mark. I comparison misses the realize the not ex- of Education creatures —Boards by a that it misses the mark would add have, course, impor- These cepted. case, any In there is margin. rather wide delicate, discretionary tant, highly slogan disparaging. no doubt that functions, they may not none that said, the kind of That it is not Bill of limits of the perform within the substantially inter- materially and educating Rights. That suspect activities. fere reason for scru- citizenship young “gay” the word abound similar uses of free- of Constitutional pulous protection Valley High School Neuqua halls of individual, if not to we are doms of the virtually every high other mind at its source strangle free any sub- causing without States United princi- youth important to discount teach interruption to the educational stantial its than Tinker or school authorities suggested "hands tion for majority limits its 4. The approach words “within reason” progeny off” with the would allow. approve much broader discre- but seems to pies government plati- of our as mere

tudes. Virginia West State Bd. Educ. v. Bar

nette, 319 U.S. Tinker,

L.Ed. (quoted 733). The First provides

Amendment the school with an

opportunity for a discussion about the val respect

ues of free for differing

points grant of view but it does not

license to shut down dissension apprehension “undifferentiated fear or Tinker,

of disturbance.” Contrary

89 S.Ct. 733. majority’s

view that “free and ordered learn

ing” interests,” are “competing supra

I would argue that these values are com

patible. The First Amendment as inter

preted by Tinker is consistent with the mission to teach encouraging

debate on topics controversial while also

allowing the school to limit the debate substantially

when becomes disruptive. slogan-adorned

Nuxoll’s t-shirt comes no

where near that standard. For all of these

reasons, respectfully I concur in the judg

ment. America,

UNITED STATES of

Plaintiff-Appellee, APPELLANT COUNSEL’S MOTION TO SHAABAN, Shaaban Hafiz Ahmad Ali WITHDRAW AND TO ALLOW MR. Defendant-Appellant. SHAABAN TO PROCEED PRO SE No. 06-2801. RIPPLE, (in chambers). Circuit Judge United Appeals, States Court of Counsel for Shaaban Hafiz Ahmad Ali Seventh Circuit. Shaaban seeks leave to ap- withdraw as

April 2008.* pointed counsel for Mr. Shaaban and asks permit

that I Mr. Shaaban to proceed pro January se. On appointed new counsel for Mr. Shaaban after concluding * opinion being This initially type- script released form.

Case Details

Case Name: Nuxoll Ex Rel. Nuxoll v. Indian Prairie Sch. Dist.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 23, 2008

Citation: 523 F.3d 668

Docket Number: 08-1050

Court Abbreviation: 7th Cir.