Free Speech, Freedom from Discrimination must be Balanced in High School T-Shirt...

Free Speech, Freedom from Discrimination must be Balanced in High School
T-Shirt Case, According to ACLU

CHICAGO, Feb. 18 /PRNewswire-USNewswire/ -- Courts need to balance and
reconcile two competing and equally important legal rights when determining
whether public high schools can limit student speech that disparages other
people on the basis of race, religion, sexual orientation and similar
protected statuses, according to a legal brief filed by the American Civil
Liberties Union of Illinois in a case now on appeal in Chicago. The
organization's position is presented in an amicus curiae brief filed in the
Seventh Circuit Court of Appeals in Chicago in Nuxoll, et.al. v. Indian
Prairie School District #204. The case grows from a challenge by a Naperville,
Illinois high school student who was prevented from wearing a t-shirt with the
message "Be happy, not gay" in her public school the day after other students
were participating in the "Day of Silence," an event designed to promote
tolerance of LGBT youth.

The ACLU's brief details the two fundamental rights implicated by the case:
first, the fundamental right for public high school students to exercise their
right to free speech, including the in-school expression of controversial and
offensive messages; and second, a fundamental right to freedom from
discrimination on the basis of protected status, including race, ethnicity,
nationality, religion, sex, gender identity, sexual orientation and disability
status. The ACLU's brief suggests a path for the Court to fully protect these
two fundamental freedoms.

"The court in this case must weigh carefully these two fundamental interests
in our public schools, with neither right having automatic primacy" said Adam
Schwartz, Senior Staff Counsel for the ACLU of Illinois. "Ensuring the free
exchange of ideas -- even controversial ideas -- while protecting students
against undue harassment fosters an environment where students are best able
to learn, explore new ideas and mature."

According to the brief, courts should view these controversies through the
standard set forth in the landmark school speech case, Tinker v. Des Moines,
decided by the Supreme Court of the United States in 1969. Based on that
decision, public high school officials cannot censor speech unless they can
"reasonably...forecast" that disputed speech will cause a "substantial
disruption" of school activities or impinge on the "rights of other students."

Unfortunately, the public high school in this case argues that schools can
suppress student speech whenever such speech conflicts with the school's basic
educational mission -- a standard that improperly would allow censorship of
most student free speech. Pointing out the importance of protecting student
speech that is not disruptive or invasive of the rights of others, the ACLU
brief notes recent court decisions that struck down efforts by high schools to
limit the rights of students to form clubs supporting tolerance of gay and
lesbian students.

The ACLU brief also argues that in deciding whether derogatory student speech
can be censored because it invades "the rights of others," schools and courts
should examine whether the speech comprises "harassment," as that term has
been defined in decades of anti-discrimination case law. Specifically,
in-school expression by a public high school student is unprotected harassment
only when it is reasonably forecast by school officials to be severe or
pervasive enough to (i) significantly hinder a reasonable student in obtaining
an education because of his or her protected identity category, or (ii)
significantly harm a reasonable student's physical, mental, or emotional
well-being because of his or her protected identity category. Application of
this standard is fact-intensive. Under this test, some derogatory messages
will be protected speech, and others will be unprotected harassment.

The ACLU brief concludes by applying this standard to the facts of this case.
First, the school's speech policy is unlawful on its face, because it broadly
prohibits all speech that disparages protected classes, rather than carefully
distinguishing protected speech from unprotected harassment. Second, the
school last spring should have allowed two students on one day to wear the "be
happy, not gay" t-shirts. Third, the plaintiff's plans for future speech are
vague, so the appellate court should remand the case for further development
of a factual record, which will allow a meaningful evaluation of the plans
under the proper legal test.

"There are a number of cases similar to this one working through courts
throughout the nation," added Schwartz. "We hope that the Court in this matter
will help set a standard for analyzing these challenges that can give guidance
to students and school officials."

A copy of the ACLU of Illinois' brief in Noxall v. Indian Prairie School
District #204 can be found at
http://www.aclu-il.org/legal/courtdocuments/nuxoll.pdf.

SOURCE ACLU of Illinois

Edwin C. Yohnka, Director of Communications of American Civil Liberties Union
of Illinois, +1-312-201-9740, ext. 305, Pager: +1-312-851-2832,
eyohnka@aclu-il.org