7th Circuit Protects Students T-Shirts with the Slogan "Be happy, not gay."

The case is *Zamecnik v. Indian Prairie School Dist. #204 * and a link to the decision is provided below.


There was a designated day in which students were permitted to advocate for the rights of gay students, and the next day students wanted to express a message the court characterizes as criticism of homosexuality, by wearing a t-shirt with the slogan “Be happy, not gay.” The school would not permit the words “not gay” to be displayed on the t-shirt.

The 7th Circuit decided, “Thus a school that permits advocacy of the rights of
homosexual students cannot be allowed to stifle criticism of homosexuality

The 7th Circuit then dispensed with the argument the school was seeking to protect its students, the speech was hate speech, and derogatory. “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. R.A.V. v. City of
St. Paul, supra, 505 U.S. at 394; Boos v. Barry, 485 U.S. 312,
321 (1988)…In asking for a preliminary injunction Nuxoll acknowledged
that “Be Happy, Not Gay” was one of the“negative comments” about homosexuality that he Nos. 10-2485, 10-3635 5 thought himself entitled to make. But we said that unlike “homosexuals go to Hell,” which he concedes are “fighting words” in the context of a school (and unlike “I will not accept what God has condemned” and “homosexuality is shameful”—terms held, perhaps questionably— unless euphemism is to be the only permitted mode of expressing a controversial opinion—to be fighting words in Harper v. Poway Unified School District, 445 F.3d 1166, 1171 (9th Cir. 2006), vacated as moot, 549
U.S. 1262 (2007)), “Be Happy, Not Gay” is not an instance
of fighting words.”

The Court finally concluded this speech did not materially and substantially disrupt the educational process.

"In this factual vacuum, we described “Be Happy, Not Gay” as “only tepidly negative,” saying that “derogatory” or “demeaning” seemed too strong a characterization. 523 F.3d at 676. As one would expect in a high school of
more than 4,000 students, there had been incidents of harassment of homosexual students. But we thought it speculative that allowing the plaintiff to wear a T-shirt that said “Be Happy, Not Gay” “would have even a
6 Nos. 10-2485, 10-3635 slight tendency to provoke such incidents, or for that
matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the
exercise of a student’s free speech.” Id.

I’m just feeling smug because I picked it was Posner from the quotes you included in the OP.

Sounds reasonable to me. Content-based censorship by the state or its agents is un-American.

Count-down to “WHAT IF IT WERE THE KKK!!!” in 3…2…


While I disagree with the sentiment expressed in the T-shirts in question, I absolutely agree with this ruling. In fact, I find the original suit frivolous. I think the T-shirts in question express in a gentle and amusing way a sentiment that is usually neither gentle nor amusing. If it is legal to criticize a gay life style at all (and obviously it is and should be), better this than the vast majority of such criticism, which tends toward the hateful and vicious.

A debate appears to be developing as expected, NotreDame05, but would you please state your own views on the topic? Right now your OP is just a summary of the decision (and mostly the court’s writings, not your own).

I’m all in favor of letting kids wear Klan tshirts to school. Know thine enemy, and all.

The sad part, though, is that you have no clue that it is extremely relevant whether they would permit children to wear Klan (or Nazi) t shirts to school.

I’ve always been extremely leery of the value of suppressing hate speech. Hate speech strikes me as potentially a very large tent underneath which a lot of stuff those in power don’t like could easily be swept. I’m all for the decision, while thinking the sentiment expressed on the T-shirt is simply dumb.

The issue with wearing a Klan shirt or one with a swastika on it is those would, I hope; be considered disruptive to the classroom environment and I’d dress code the kid.

I’ve had issues with students drawing swastikas on binders and notebooks and I don’t let them have it in my room. You want to do that outside of school, that’s another issue and feel free to wear what you want.

I’m more concerned for the students who may be threatened by such a shirt or drawing than I am for a kid who’s just trying to stir up attention for themselves.

I agree with this particular ruling and the court’s logic on it.

Content based censorship is permited in schools. That issue has nothing to do with the decision.

Dio, censorship is permitted in schools, but it is not necessarily appropriate. I seriously doubt any kid felt threatened by “Don’t be gay - be happy” on someone’s T-shirt (and if one did, pwecious snowfwake had better toughen up, because it’s not the last time someone is ever going to express a contrary opinion on an important topic), even though there may have been many kids who disagreed with the sentiment (I hope). Unless the school bans anything on a student that is indicative of political or religious opinion (which, admittedly, is possible), I don’t see how this T-shirt would be ban-worthy.

Anyone has the right to be gay, or black, or Republican, or orthodox Jewish or whatever. But no one has the right to have everyone else love what they are.

You’re right. Somebody’s sure to come along and claim some non-existent event is going to occur which will prove their own ideological bias is true.

It’ll probably happen around the third post.

Just make everyone wear school uniforms. Problem solved.

I have the right to be black? Day-um!!

I think the court got it right. Even kids can only be protected from so much.

I, for one, would have no problem with a T-shirt that read “be happy, not KKK”

I thought you all would be pleased at the privileges I granted you. :smiley:

Don’t be ridiculous.


Compared to what I grew up with, that t-shirt is small potatoes. Completely irrelevent to the argument, but I offer it for what it is worth. To have a whole day dedicated to appreciating gay folks is interesting; do they do that for any other despised or threatened minorities (Muslims, for example)?

Yes, the message is somewhat hurtful (it also implies that gay people aren’t or possibly even can’t be happy). However, it’s about on a par with “I don’t like you because you have a booger-face” or some other childish sentiment.

Anyway, among these ramblings I just want to say that I agree with the court’s decision, just as I agree with the decision about the Phelps gang’s right to the expression of their views. Defending free speech sometimes requires one to defend the rights of despicable (or just annoying) people. The issue is not what we like or what hurts our feelings. This particular case is not even a slightly gray area, except for the venue in which it played out.

Then you have kids beating each other up on the way home because they have a uniform from a different school. Or so I’ve been told by people who grew up with uniforms.

And on top of that, it’s just one more way in which kids are left with no experience in making their own decisions, leading to all sorts of problems later in life.

I didn’t express an opinion on the ruling, I was just correcting a factually incorrect statement.

For the record, though, schools certainly can and do prohibit speech which is likely to be disruptive or patently offensive, and that includes hate speech. This court apparently didn’t think this T-shirt rose to that level. Something like “I hate niggers” potentially could, however. It’s not a free-for-all.

I’m glad to see that you endorse the right to be black, though. That’s very tolerant of you.

Black history month is celebrated throughout February in schools. In local public schools, they have students pick their favorite african american and do a report on them.