A Stitch in Haste

The latest round in the "Be Happy, Not Gay" t-shirt wars —

"Be Happy, Not Gay" is only tepidly negative; "derogatory" or "demeaning" seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says "Be Happy, Not Gay" would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere.

"As one would expect"? Why should anyone ever expect a single "incident of harassment of homosexual students"? And I suppose the killing of Lawrence King was also "highly speculative" and "only tepidly negative."

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The framework that Judge Posner lays out for analyzing this case is actually quite reasonable:

Taking the case law as a whole we don't think a school is required to prove that unless the speech at issue is forbidden serious consequences will in fact ensue. That could rarely be proved.
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But what is "substantial disruption"? Must it amount to "disorder or disturbance"? Must classwork be disrupted and if so how severely? We know from Morse* that the Supreme Court will let a school ban speech — even speech outside the school premises — that encourages the use of illegal drugs, without the school's having to prove a causal relation between the speech and drug use. We know too that avoiding violence, if that is what "disorder or disturbance" connotes, is not a school's only substantial concern. Violence was not the issue in Morse, or in Fraser**, the lewd-speech case. In fact one of the concerns expressed by the Supreme Court in Morse was with the psychological effects of drugs. Imagine the psychological effects if the plaintiff wore a T-shirt on which was written "blacks have lower IQs than whites" or "a woman's place is in the home."

The whole point of the Day of Silence is that anti-gay bigotry often, perhaps usually, results not in "disorder or disturbance" but in intimidation. Intimidation that disrupts the school environment for them. Gay students insulted, teased, taunted or harassed (or worse) often suffer in silence.

From Morse and Fraser we infer that if there is reason to think that a particular type of student speech will lead to a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school — symptoms therefore of substantial disruption — the school can forbid the speech. The rule challenged by the plaintiff appears to satisfy this test.

That should have been the end of the opinion and of the "Be Happy, Not Gay" t-shirt.

But alas, this is Richard Posner and these are gays who are being targeted, so of course there is going to be an "on the other hand" —

The expression "Be Happy, Not Gay" is a play on words, since "gay" used to be an approximate synonym for "happy" but now has been appropriated to designate homosexual orientation. One cannot even be certain that it is a "derogatory" comment; for "not gay" is a synonym for "straight," yet the school has told us that it would not object to a T-shirt that said "Be Happy, Be Straight." It wouldn't object because to advocate X is not necessarily to disparage Y. If you say "drink Pepsi" you may be showing your preference for Pepsi over Coke, but you are not necessarily deriding Coke. It would be odd to call "Be Happy, Drink Pepsi" a derogatory comment about Coke.

Bigoted antipathy toward gays is comparable to preferring Pepsi over Coke? Posner himself can't help but acknowledge the sheer idiocy of such an analogy and promptly abandons it. Still, two paragraphs later, we get the hopelessly-disconnected-from-reality "tepidly negative" passage at the top of this post.

The controlling case for this fact pattern is clearly Fraser, which — while crafted in the context of lewd and offensive speech — set a straightforward, robust test for curtailing student speech on school grounds:

In upholding the students' right to engage in a nondisruptive, passive expression of a political viewpoint in Tinker***, this Court was careful to note that the case did "not concern speech or action that intrudes upon the work of the schools or the rights of other students."

Posner, somehow, actually cites Fraser as a counterargument against the school banning the bigot-shirts: since "Be Happy, Not Gay" is not lewd speech, Fraser must not apply. How convenient.

The case is Nuxoll v. Indian Prairie School District #204, No. 08-1050 (7th Cir., April 23, 2008) (PDF - 20 pages). More thoughts at Decision of the Day, Good As You.

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The Day of Silence, incidentally, is tomorrow.

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*Morse v. Frederick, 127 S. Ct. 2618 (2007)
**Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)
***Tinker v. Des Moines School Dist., 393 U.S. 503 (1969)