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Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. #204 - 523 F.3d 668 (7th Cir. 2008)


It is highly speculative that allowing a student to wear a T-shirt that says "Be Happy, Not Gay" will have even a slight tendency to provoke incidents of harassment of homosexual students, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, too thin a reed on which to hang a prohibition of the exercise of a student's free speech where a school fails to justify the ban of that legend.


A private group at Neuqua Valley High School, called the Gay, ***, and Straight Education Network, promoted an annual event called the "Day of Silence" that was intended to draw attention to the harassment of homosexuals. Students participated by remaining silent throughout the day except when called upon in class. Some teachers, as part of their own observance of the "Day of Silence," would not call on students participating in the observance. Some students and faculty wore T-shirts that day with legends such as "Be Who You Are." Plaintiff Alexander Nuxoll was one of the students who disapproved of homosexuality. Some students of similar mind participated in a "Day of Truth," whereat co-plaintiff wore a shirt that read, "My Day of Silence, Straight Alliance" on the front and "Be Happy, Not Gay" on the back. A school official had the phrase "Not Gay" inked out, resulting to a ban of the slogan "Be Happy, Not Gay." The school based the ban on a school rule forbidding "derogatory comments," oral or written, "that refer to race, ethnicity, religion, gender, sexual orientation, or disability." The school deemed "Be Happy, Not Gay" a derogatory comment on a particular sexual orientation. In this particular case, Nuxoll, in his motion for a preliminary injunction, challenged the ban by alleging that his First Amendment rights entitled him to make, whether in school or out, any negative comments he wanted to make about the members of a listed group, including homosexuals, provided they were not inflammatory words likely to provoke a violent reaction and hence a breach of the peace. The United States District Court for the Northern District of Illinois, Eastern Division, denied his motion for a preliminary injunction under Fed. R. Civ. P. 65. Nuxoll appealed the decision.


Was the denial of Nuxoll’s motion for preliminary injunction justified?




According to the court of appeals, in order for Nuxoll's motion for preliminary injunction to be granted, a reasonable probability that his right to free speech was violated had to be shown. In the case at bar, the court held that the school officials did not sufficiently justify why Nuxoll could not wear a T-shirt bearing a "Be Happy, Not Gay" slogan. Therefore, the court reversed the district court's order denying the Nuxoll's motion for a preliminary injunction.

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