Introduction. In April of 2006, a senior at Neuqua Valley High School in Naperville named Heidi Zamecnik wore a t-shirt to school that read "Be Happy, Not Gay" on the back.1 Ms. Zamecnik did this in protest of the "Day of Silence," a day sponsored by the Gay, Lesbian and Straight Education Network at Neuqua Valley, which promoted tolerance for homosexual lifestyles and protested anti-homosexual discrimination.2 Considering the message on the t-shirt to be offensive and derogatory towards homosexuals, Neuqua Valley officials crossed out the "Not Gay" part of her t-shirt.3 Due to her self-professed deeply-held religious convictions, Ms. Zamecnik wished to wear the t-shirt again in 2007 after another "Day of Silence" at Neuqua Valley,4 and she sued for the right to do so.5
Heidi Zamecnik’s lawsuit may have been the first of its kind in the Seventh District in that it dealt with a student’s response to a "Day of Silence" at a high school. The idea behind Zamecnik’s lawsuit is not, however, novel to all courts. In Harper v. Poway Unified School District,6 a senior student at Poway High School in Poway, California named Tyler Harper wore a t-shirt with a similar anti-homosexual message on it and sued for an injunction to wear the shirt in school.7 In a 3-2 panel decision, the Ninth Circuit Court of Appeals refused to allow the student to wear his anti-homosexual t-shirt in school, citing Tinker v. Des Moines Independent School District,8 to hold that the t-shirt unlawfully impinged upon the rights of homosexual students.9 The District Court for the Northern District of Illinois conducted its analysis of the Zamecnik case mindful of the decision in Harper,10 and attempted to formulate its own response to a "Day of Silence" protest against the backdrop of Seventh Circuit precedent.
Factual Background. Since 2003, the Gay, Lesbian, and Straight Education Network at Neuqua Valley High School has sponsored a "Day of Silence" at the high school to hold activities protesting discriminatory treatment of homosexuals.11 As an evangelical Christian, Heidi Zamecnik believed that homosexuality is immoral and contrary to biblical teachings.12 Finally feeling the need to protest the "Day of Silence" during her junior year, Zamecnik wore a shirt the day after the "Day of Silence" that read "Be Happy, Not Gay" on the back.13 The school responded by expressing concerns that they had heard about regarding other students being offended by her t-shirt, and by communicating to Zamecnik the importance of respecting other students.14 The Dean of Students then crossed out the "Not Gay" portion of Zamecnik’s t-shirt and permitted her to continue with the school day.15
In April of 2007, Zamecnik planned to wear and distribute shirts, buttons, and stickers with the exact same message on them during school hours on the day following the "Day of Silence"; Neuqua Valley, of course, rejected the idea and promised a similar result.16 Zamecnik then filed a lawsuit through her parents to obtain a preliminary injunction against the school to communicate her message.17 So that a decision could be given before the date Zamecnik wished to wear her t-shirt, the school stipulated to a number of facts with Zamecnik.18 Among the facts that the school introduced into stipulation was the existence of the Harper case in the Ninth Circuit, which, it correctly claimed, took judicial notice of how derogatory and negative statements about homosexuality had a deleterious effect on homosexual students’ self-esteem and created "related problems."19
Court Analysis. The District Court took its own judicial notice of the Harper case, noting however, that it involved more invective speech than what was involved in the present case.20 The Court also noted another case from the Sixth Circuit, Nixon v. Northern Local School District Board of Education,21 which held that wearing a shirt with invective anti-homosexual language was an acceptable exercise of student free speech, so long as substantial disruption of the school environment did not result.22 The court noted that it would give respectful consideration to the precedents of both circuits and began its analysis by acknowledging the well-established proposition, first phrased in the 1969 U.S. Supreme Court case of Tinker v. Des Moines Independent School District:23 "Students…do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."24 The court also noted, however, that the rights of students in the school environment were more restricted, and not coextensive with adults’ rights in other settings…25
After acknowledging these initial precepts, the court engaged in a more detailed and difficult analysis of the categories of school speech issues delineated from the U.S. Supreme Court.26 Zamecnik contended that the free speech rights of students could be categorized into three distinct categories of analysis: schools may restrict speech that is vulgar, lewd, indecent, or plainly offensive27 under Bethel School District No. 403 v. Fraser;28 schools may restrict speech that is sponsored by the school, so long as the restriction bears a reasonable relation to a "legitimate pedagogical interest,"29 pursuant to Hazelwood School District v. Kuhlmeier;30 and finally, based on Tinker, "schools may restrict private student speech that ‘materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school,’ in that it would ‘substantially interfere with the work of the school or impinge upon the rights of other students.’"31 It was Zamecnik’s distinct view that these three categories in no way overlapped, and the only way that her speech could be found offensive would be by satisfying the Fraser "lewd or highly offensive" standard.32
The District Court took notice of this tripartite standard of analysis, which was used by the court in Nixon, and it noted that while the Nixon court found Tinker to be controlling, since substantial disruption of the school environment was not proven, the speech could not be suppressed.33 In contrast, the District Court noted that the Harper court recognized another prong of Tinker to be controlling, one that had been acknowledged but not used by the Nixon court: the "rights of other students" prong, which owed its roots to language in Tinker that was cited by Zamecnik in the aforementioned tripartite standard. 34 Following this standard, the Harper court held that the offensive wording on Harper’s t-shirt "Colli[ded] with the rights of other students" in "the most fundamental way," impinging on their rights to be free from harassment and injurious remarks that could affect them psychologically.35
The District Court in Zamecnik also recognized that the Harper court "did not limit considerations of a school’s pedagogical interests or ‘basic educational mission’ to situations involving school-sponsored speech."36 The Harper court instead recognized that a "school need not tolerate student speech that is inconsistent with its basic educational mission," and that "[p]art of a school’s ‘basic educational mission’ is the inculcation of ‘fundamental values of habits and manners of civility essential to a democratic society.’"37 In so holding, the Harper court blended the holdings from Hazelwood and Fraser to create a standard for regulating school speech that is not necessarily sponsored by the school.38 This analysis, the District Court noted, was more consistent with prior Seventh Circuit precedent, which has held at least twice that "legitimate pedagogical interests" were not limited to school-sponsored speech.39
The controlling precedent regarding student speech in the Seventh Circuit, as noted by the District Court, is Muller by Muller v. Jefferson Lighthouse School,40 which established that restrictions on speech would be subject to review from a reasonableness standard based on legitimate pedagogical concerns.41 What constituted "pedagogical concerns," according to the Muller court, was "…not only the structured transmission of a body of knowledge in an orderly environment, but also the inculcation of civility (including manners) and traditional, moral, social, and political norms." Further, Muller held that schools could suppress certain viewpoints that were fundamentally inconsistent with their educational mission and that "[S]chools have ‘an interest in protecting minors from exposure to vulgar and offensive’ speech, [citations omitted] which includes insulting speech."42
Applying this precedent to the case at hand, the Court noted that, although the Seventh Circuit had not clearly ruled on whether school officials could restrict speech that was derogatory towards a certain category of students, "the Seventh Circuit would take into consideration legitimate pedagogical concerns of the school as well as the school’s views of its educational mission, including inculcating rules of civility."43 This being the case, the District Court agreed with the Harper court that a high school’s interests in promoting tolerance among students and protection of homosexual students from harassment were legitimate pedagogical concerns. The District Court thus held that the statement Zamecnik wore on her shirt was demeaning and disparaging to homosexuals and that the school would be justified in censoring it.44 Since the school could censor the message on her t-shirt, the District Court held that Zamecnik would not be likely to succeed on the merits of her claim.45
In closing, the District Court noted that when balancing the harms that may accrue to each side in deciding whether or not to grant an injunction, the harm accruing to Zamecnik due to the inability of her to express her views was significantly lower than the harm that would accrue to homosexual students when faced with derogatory statements.46 The Court also dismissed some other claims that Zamecnik filed in addition to her free speech claim, the first of which was the claim that Neuqua Valley conducted viewpoint discrimination by suppressing her t-shirt.47 The Court rejected this claim, not only because it viewed the t-shirt’s suppression as a proper restriction of speech that was contrary to the school’s educational mission, but also because the school uniformly refused to permit any speech that was derogatory towards another student, regardless of whatever that speech consisted.48 Further, the Court noted, "Plaintiffs are permitted to express their view that intolerance toward gays should be permitted as long as they do it in a manner that does not involved negative statements about gays."49
Zamecnik also attempted to demonstrate that the School Board’s policy on student appearance, which prohibited, "…garments or jewelry with messages…which are derogatory, inflammatory, sexual, or discriminatory,"50 was overly broad for its restrictions on student speech.51 The Court dismissed this claim by first pointing out that a recent Seventh Circuit case, Brandt v. Board of Education of Chicago,52 held that "Prohibiting children from wearing to school clothing that contains ‘inappropriate’ words or slogans places appropriately broad limits on school authorities’ exercise of discretion…"53 The Court also noted Muller’s holding that prior restraint on student speech in school would be permitted, so long as that restraint was reasonable.54 In light of these prior precedents, the Court not only noted that the policy on student appearance would likely be reasonable, but also that the policy was not even a necessary prerequisite for suppressing Zamecnik’s speech.55 In light of this, the Court made no formal holding regarding the Policy’s validity in its opinion, and ordered judgment for the defendant school district.56
Case Analysis. Zamecnik is a unique case in that, like Harper, it recognizes the rights of homosexual high school students to be free from derogatory remarks about their sexual orientation.57 The Zamecnik case is also somewhat unique for the District Court’s decision to adhere, at least in part, to Harper’s holding that student speech should be suppressed when it violates Tinker’s "rights of others" prong.58 Regardless, the decision in Zamecnik is completely faithful to the standard for censorship of student speech in the Seventh Circuit, which is well-established in the appellate court decision of Muller.59 Thus, whatever one believes about the correctness of the Zamecnik court’s decision to consider how derogatory speech affects the rights of homosexual students, one cannot argue that it did not properly follow precedent for its respective jurisdiction.
However, there is reason to believe that the decision in Zamecnik does not stand on solid ground. The "rights of others" prong that the Zamecnik court found persuasive from Tinker may not have been meant to be a prong in and of itself on which to judge the validity of student speech. Towards the end of its opinion in Tinker, the Supreme Court stated,
"A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without ‘materially and substantially interfer(ing) with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others.60
From this, it appears that the Tinker Court meant its language about the "rights of others" to be taken completely in context with its discussion about student speech interfering with "requirements of appropriate discipline" in the school, not as a stand-alone holding in itself. Though Zamecnik’s reliance upon the "rights of others" prong may have been in good faith, this language in the Tinker opinion may not have been meant as anything more than dicta. In this regard, continued reliance upon the "rights of others" prong might well be inappropriate.
Also questionable is whether the language in Muller, cited in Zamecnik,61 that "The test, therefore, is whether the restrictions on student expression are ‘reasonably related to legitimate pedagogical concerns,’"62 is still viable. This test appears to have been directly fashioned from language in the Supreme Court’s decision in Hazelwood, which stated that, "…educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."63 Similar to the "rights of others" prong in Tinker, it seems that the "legitimate pedagogical concerns" holding upon which Muller is based needs to be taken in context with other language in the opinion from which it is derived. According to Hazelwood, censorship of student speech based on legitimate pedagogical concerns seems to apply only to "school-sponsored expressive activities."64 Since neither of the situations involving speech in Muller and Zamecnik was alleged to have been sponsored by the school,65 it is at least arguable that the "legitimate pedagogical concerns" holding that controls in the Seventh Circuit was followed entirely in error.
Unfortunately, the U.S. Supreme Court vacated the Harper case for being moot,66 and no appellate opinion for Zamecnik currently exists, so the "rights of others" prong of Tinker, as it stands now, has not been expressly disaffirmed. The Supreme Court also denied certiorari to Muller,67 so the standard for evaluating student speech in the Seventh Circuit remains standing as well. However, both standards appear to be based on either misinterpretations of the U.S. Supreme Court’s holdings, or wholesale reliance upon dicta, and at some point, it might be best for the Supreme Court to expressly refute them. Whether or not one believes that the correct decision was reached in cases such as Zamecnik, Harper, and Muller, it seems clear that the flexibility of the holdings’ language could just as easily be stretched such that an opposite and possibly incorrect decision would be reached in another case. In fact, the Supreme Court has felt it necessary to warn against such flexibility in student speech holdings, perhaps for just such a reason.68 With inevitable volatility surrounding the issue of the rights of homosexual students, it is believable that cases similar to Zamecnik and Harper will arise in the future, and the Supreme Court may yet get a chance to reevaluate the holdings announced in these cases. If this occurs, hopefully the Court will issue a clearer standard based on a more accurate reading of its prior precedent.
1 Zamecnik ex rel. Zamecnik v. Indian Prairie Sch. Dist. #204 Bd. of Educ., 2007 WL 1141597 at *2 (N.D. Ill. 2007). Ms. Zamecnik was joined in her complaint by Alexander Nuxoll, then a 14-year-old freshman at Neuqua Valley. Id.
2 Id. at *1.
3 Id. at *2.
4 Id. at *6.
5 Id. at *1.
6 Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006), vacating as moot, 127 S. Ct. 1484 (2007) (mem.).
7 Harper, 445 F.3d at 1171-72.
8 393 U.S. 503 (1969).
9 Harper, 445 F.3d at 1178.
10 See Zamecnik ex rel. Zamecnik v. Indian Prairie Sch. Dist. #204 Bd. of Educ., 2007 WL 1141597 at *6 (N.D. Ill. 2007).
11 Zamecnik, 2007 WL 1141597 at *1.
12 Id. at *3.
13 Id. at *2. Zamecnik also chose to remain silent on the day following the "Day of Silence," and she was not punished for this. Id. at *5.
16 Zamecnik ex rel. Zamecnik v. Indian Prairie Sch. Dist. #204 Bd. of Educ., 2007 WL 1141597 at *6 (N.D. Ill. 2007). Neuqua Valley officials did say, however, that a message such as "Be Happy, Be Straight" would be acceptable. Id.
17 Id. at *1. Zamecnik chose to file her lawsuit before attempting to wear the "Be Happy, Not Gay" t-shirt in 2007 and was somewhat chided by the court for not filing her lawsuit after the initial instance where she wore the t-shirt, when the merits could have been debated initially. Id. at *2.
18 Id. at *2.
19 Id. at *6.
20 Id. The t-shirt that earned Harper a trip to the school office for the day read, "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" on the front, and "HOMOSEXUALITY IS SHAMEFUL" on the back. Harper, 445 F.3d at 1171.
21 383 F. Supp.2d 965 (S.D. Ohio 2005). The t-shirt worn by the plaintiff in Nixon read, "Homosexuality is a sin! Islam is a lie! Abortion is murder!" Nixon v. Northern Local Sch. Dist. Bd. of Educ, 383 F. Supp.2d 965, 967 (S.D. Ohio 2005).
22 Nixon, 383 F. Supp.2d at 975.
23 393 U.S. 503 (1969).
24 Zamecnik, 2007 WL 1141597 at *7.
26 See Id.
28 478 U.S. 675 (1986).
29 Zamecnik, 2007 WL 1141597 at *7.
30 484 U.S. 260 (1988).
31 Zamecnik, 2007 WL 1141597 at *7, citing Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969).
32 Zamecnik, 2007 WL 1141597 at *7.
34 Id. at 7-8.
35 Zamecnik, 2007 WL 1141597 at *8, citing Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1183 (9th Cir. 2006).
36 Zamecnik, 2007 WL 1141597 at *8.
37 Zamecnik, 2007 WL 1141597 at *9, citing Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1185-86 (9th Cir. 2006).
38 See Zamecnik, 2007 WL 1141597 at *9.
40 98 F.3d 1530 (7th Cir. 1996),cert. denied, 520 U.S. 1156 (1997).
41 Muller, 98 F.3d at 1540, citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).
42 Muller, 98 F.3d at 1542. The Zamecnik court also noted that another District Court case from 2005, Griggs ex rel. Griggs v. Fort Wayne School Board, 359 F.Supp.2d 731 (N.D. Ind. 2005) had affirmed Muller’s holding regarding a school’s right to censor speech based on a school’s legitimate pedagogical concerns. See Griggs, 359 F.Supp.2d at 741.
43 Zamecnik, 2007 WL 1141597 at *10.
44 Id. at *10-11.
45 Id. at *10.
46 Id. at *11.
47 Id. at *12.
49 Zamecnik ex rel. Zamecnik v. Indian Prairie Sch. Dist. #204 Bd. of Educ., 2007 WL 1141597 at *12 (N.D. Ill. 2007).
50 Id. at *3.
51 Id. at *12.
52 480 F.3d 460 (7th Cir. 2007).
53 Zamecnik, 2007 WL 1141597 at *12, citing Brandt v. Bd. of Educ. of Chicago, 480 F.3d 460, 467 (7th Cir. 2007).
54 Zamecnik, 2007 WL 1141597 at *12.
56 Id. The District Court also rejected Zamecnik’s alleged "hybrid" claim, which would have joined her free speech claim with a Free Exercise clause violation claim, pursuant to the U.S. Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Id. Since Zamecnik’s free speech claim was not meritorious, the Court declined to consider this "hybrid" claim. Id.
57 See Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006); Zamecnik, 2007 WL1141597 at *11.
58 See Harper, 445 F.3d at 1177-78; Zamecnik, 2007 WL1141597 at *11.
59 See Muller, 98 F.3d at 1540; Zamecnik, 2007 WL1141597 at *10.
60 Tinker, 393 U.S. at 512-13.
61 Zamecnik, 2007 WL1141597 at *9.
62 Muller, 98 F.3d at 1540.
63 Hazelwood, 484 U.S. at 573.
64 See Id. Indeed, that Hazelwood needs to be viewed in this context appears to have even been recently reaffirmed in the Supreme Court’s Morse v. Frederick opinion, its most recent school speech case. See Morse v. Frederick, 127 S. Ct. 2618, 2627 (U.S. 2007).
65 See Zamecnik, 2007 WL 1141597 at *4. See generally, Muller by Muller v. Jefferson Lighthouse School, 98 F.3d 1530 (7th Cir. 1996).
66 127 S. Ct. 1484 (2007) (mem.).
67 520 U.S. 1156 (1997).
68 Morse, 127 S. Ct. at 2629.
Mark Perlaky is a third year law student at Northern Illinois University College of Law in DeKalb, Illinois. He is a 2004 graduate of the University of Toledo in Toledo, Ohio, where he received summa cum laude honors in obtaining his Bachelor of Arts degree in History, with a minor in French. He is currently a research and 711 intern at the DuPage County Public Defender’s Office, and he is a student representative for Thomson-West. He is also a Lead Articles Editor for the Northern Illinois University Law Review.