Federal Appeals Court Rules Chicago-Area Student Had Right to Wear Anti-Gay T-Shirt to School


In a case that has been ongoing since 2006, the 7th Circuit Court of Appeals ruled yesterday that a student at Neuqua Valley High School in Naperville, Illinois had the right to wear a shirt that said "Be Happy Not Gay".

The Sun-Times reports:

The court had rejected Indian Prairie School District 204’s argument that school officials could prohibit students from wearing the shirts to prevent some students from having their feelings hurt.

In its opinion, the court said a “school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality.”

“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,” the court said. “But people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.”

Heidi Zamecnik, a student at the time, wore the shirt in response to GLSEN's "Day of Silence" in which students take a vow of silence against bullying and in support of other LGBT students.

Regarding the condition of the shirt above:

The school’s dean demanded she remove it or be sent home for the day. After speaking with Zamecnik’s mother by phone, all agreed to change the shirt to read, “Be Happy, Be Straight.” However, the dean instead had a female counselor cross the words “Not Gay” off Zamecnik’s shirt so it simply read “Be Happy.”

The appeals court ruling overturns two previous rulings by lower courts.


  1. candideinnc says

    How would this court rule about tee-shirts that said “Spics are dirty,” or “whitey is a cracker,” or other racial epithets? Is it just okay to disparage gays? This is one stupid ruling.

  2. Brian says

    Does this mean I should dust off that “White Power” t-shirt and let some 9th grader in Illinois wear it to school?
    ** Note: I actually don’t own a White Power T-shirt……

  3. InTristin says

    sorry, I disagree, If people want to wear shirts in school that slander us, they have every right to do so. I don’t understand the need to fight against this kind of thing. I mean it makes us look better. If we can scream gay pride, let them scream whatever they like.

  4. redball says

    Amen, Candide. This ruling is completely offensive. How about “Be Gentile, not Jewish” or “If you ain’t white, you ain’t right!” shirts, anyone?

    Are they serious with this: “school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality”?

    As if homosexuality were a Dali painting instead of an inborn human characteristic. Antediluvian, amateurish, and asinine.

  5. TampaZeke says

    @INTRISTIN, I would agree with you 100% if gays were being treated just like everyone else, just like other minorities but we’re not. Anti-gay speech is protected “free-speech” in schools but racist, anti-Semitic and anti-Christian speech is banned. Someone needs to explain to me what the difference is. Either allow ALL bigots to speak freely or NONE. We shouldn’t be picking and choosing one form of bigotry to call free speech and all others to call verboten.

  6. Rucka says

    Can you imagine the uproar if the shirt said “Be Happy, Not Handicapped”, or “Short People Don’t Measure Up” or “Bible=Fable” or “Jesus committed suicide by Roman Soldier”

  7. E. says

    This is a shitty ruling and the wording of it is awful: it’s not “criticism of [our] beliefs or even [our] way of life” that is at stake here, it’s criticism of who we ARE. Pretty shocking to be reading this kind of language, essentially casting homosexuality as a lifestyle, coming out of a court in Illinois.

    Also, schools are not society writ large. I thought they had the right to make decisions that are in the best interests of the students at large, including the suppression of speech?

  8. Rob says

    According to the court’s ruling, what’s good for the goose is good for the gander. Therefore, start wearing your supportive GLBT (not anti-straight) clothing at school.

    As for the question about whatever happened to good manners, I mean, thank the Teahadists and their GOPer breathern for making a mockery of manners in this country. “Civility” today is but a word in the dictionary.

  9. ratbastard says

    Reality Check:

    Yes, it’s perfectly legal to wear a shirt that disparages others or praises a particular race, ethnicity, orientation, etc., That’s protected under the constitution. Of course, an individual employer [private or public], institution, can restrict many activities on their premises or among their employees or students.

    What’s with the ‘White Power’ angle? Where else was race mentioned? It wasn’t. And anyways, there are MANY black, Asian, Hispanic, etc., homophobes, racists, etc.,

  10. candideinnc says

    Ratbastard and Intristin–The courts have ruled in the past that schools are not subject to the same rules of freedom of speech as the rest of society, and that schools can impose rules on what can be worn and what can be done and what can be said in order to ensure an orderly environment for learning. Students are required to be there by law, and are not allowed to be disruptive. If this isn’t disruptive, I don’t know what is. It is an attack on the character of a minority, designed to denigrate their very being.

    The Court that ruled on this was undoubtedly a bunch of Rethug bigots appointed by Bush.

  11. Mike says

    Well, then people should start wearing “Jesus Sucks” T-shirts, etc. and see how far that goes. Basically, everyone has a right to free speech, but that doesn’t extend to creating a “hostile environment”. This is just common sense, and obviously these judges missed the point.

  12. Phil says

    The anti-gay t-shirt avoids vulgar language and words which are considered slurs, so it isn’t in the same category as “Spics are dirty”. But how about these t-shirt suggestions:

    Jews and Muslims repent!

    Why doesn’t Jesus eat M&M’S? Because they fall through the holes in his hands.

    Both of the examples above also avoid vulgar language and slurs. Schools can’t use a double standard that disadvantages only LGBT people. I’m sure you could successfully argue that in court.

  13. Matthew says

    This makes no sense for obvious reasons. Schools always just put things like this into the category of things that distract from learning. They have every right to tell the student what she could or could not wear. This ruling is absurd.

  14. bravokilo says

    It’s so funny that people only believe in free speech when they agree with the speaker. Typical.

    This ruling is perfectly in line with Supreme Court precedent. Public schools can only censor speech when it interferes with their primary duty of teaching students (i.e. the speech is disruptive). They cannot censor speech just because they don’t agree with it. That’s a no-no.

    Students would also be allowed to wear shirts that disparaged races; however, there’s a difference between “spics are dirty” and “be happy. not gay.”. The former contains a “fighting word” which is not protected speech. The latter contains no fighting words. If the shirt said, “be happy, not a fag.” The ruling would be different.

  15. Jack says

    The reason why a racist tshirt would not be permitted would be because the school is asserting its right to “maintain order,” most likely. The solution here is to make sure that when people wear these shirts, gay kids MAKE it disrupt order. If that happens, the school wins this lawsuit. Problem may be that we are TOO civilized

    The only other justification for suppressing the tshirt is that it would disrupt the educational mission of the school. And in that justification, I see no intellectually honest way to distinguish between an anti-gay, and racist/anti-religion shirt.

  16. Phil says

    @Bravokilo: We may have been writing our posts at exactly the same time, but I gave you two examples of t-shirt messages that don’t contain vulgar language or slurs and should be legally equivalent to the anti-gay t-shirt.

  17. says

    “It’s so funny that people only believe in free speech when they agree with the speaker. Typical.”

    I don’t think that’s what most here are arguing. One can argue that there should be unrestricted speech in schools, but speech in schools is quite clearly restricted. The question in this case is whether the Court ruling would have been the same if another group had been targeted with similar “non-fighting” words. (For example Be Tolerant, Not Christian; Be Smart, Not Black; Be Able, Not Handicapped . . . . etc.) Many of us have our doubts that the Court would have made the same decision if the expression were anti-other-groups rather than anti-gay.

  18. Sam says

    In all likelihood, the Supreme Court would say that this shirt could be restricted. The high court gives a great deal of deference to school administrators to decide these issues b/c of the sensitive nature of the school yard. Their opinion would start of by acknowledging that students do not leave their constitutional rights at the schoolyard gate, but then would say that in this particular case the school administrators acted to maintain a safe school environment. If these kids were protesting a war with t-shirts or some other such political speech, the Court might go the other way. But I have a feeling the Court would not find this to be such speech. First Amendment jurisprudence in secondary schools is not nearly as forgiving as it is outside of schools.

  19. says

    Sigh. Logic lesson #1: Just because something is a first amendment right doesn’t mean it’s allowed in SCHOOLS. Got that, commenters? I can stand outside and say, “My teacher is an idiot,” but I can’t do that in a classroom.”

    Similarly, wearing t-shirts that criticize other students — yes, religion is a good parallel to sexual orientation here — are disruptive and shouldn’t be allowed. Just because the school allows kids to wear t-shirts saying “I’m a happy Christian!” doesn’t mean they should allow shirts that say, “Catholics suck eggs in hell.”

  20. bobbyjoe says

    As that shirt appears to be cheap and made in magic marker, if you really want to offend the girl who made it and her family based on their own identity, wear a shirt that says “Be Happy, Not Inbred.”

  21. bravokilo says


    You obviously don’t know a lot about the First Amendment. There are tons of Supreme Court cases that explicitly state that students don’t lose their First Amendment rights just because they are in school. The schools are only allowed to censor speech when it interferes with a legitimate mission.

    Additionally, you might not be able to get away with standing outside of the school and saying “my teacher is an idiot.” The reach of the school to censor speech does not end at school yard boundaries.

    Go and read a book before you try to school anyone.


    Those shirts would be OK under the First Amendment too. It pretty much all depends on why the school is trying to censor your speech. The school can censor to “maintain order,” or any other goal in line with a legitimate mission for a school, but they cannot censor your speech, because they don’t like or other students don’t like it. They just can’t.


    If it were any of those other things, it would be upheld also. The courts are heavily interested in protecting the rights of speakers. Look at the recent Supreme Court decision for example. EVERYONE (not just gays) hates the Phelps church, yet the Supreme Court upheld their First Amendment rights. But these comments on Towleroad would have you believe that they ruled for the Phelps church because they were using anti-gay speech.

  22. candideinnc says

    The argument that the message of the tee shirt is not disruptive or not inciting discord in the student body is laughable. It specifically says “Don’t be gay.” Its message is inherently that there is something wrong with being gay. I am with Jack. If I were a student there, I would be insulted and prone to call the dumb ass hick who wore the shirt a bigot.

  23. One of the CA 36,000 says

    Decision sucks, although it is consistent with First Amendment protections of American idiots. After all, it costs money to print up “Mommy Smoked Crack and Stuck Her Tummy in the Microwave While She Carried Me and All I Got Was This T-Shirt and Severe Brain Damage” T-shirts. It’s good that morons self-identify themselves, I say.

    And just for the record: Anastasia Beaverhausen wins Teh Internetz today!!! Well-played, gurrrrrrll!!!!

  24. Phil says

    @ Romanhans

    Your quote: “Logic lesson #1: Just because something is a first amendment right doesn’t mean it’s allowed in SCHOOLS. Got that, commenters?” Since your disagreement is with the justices on the 7th Circuit Court of Appeals, your comment should read: “Got that 7th Circuit justices?”


    I think you’re right when you say that a school can only censor student speech when they can successfully argue that it interferes with the school’s teaching mission. However, I can’t help but agree with Candideinnc, who thinks that the “Don’t be gay” message is disruptive enough to interfere with a school’s teaching mission.

  25. ratbastard says


    RE-READ what I posted:

    ‘…. Of course, an individual employer [private or public], institution, can restrict many activities on their premises or among their employees or students.’

  26. ratbastard says


    Laws and regulations on this issue as regards to schools are vague [deliberately]…school officials will push the envelope to see what they can get away with just like some students. Sometimes [not always] it’s settled in a court. Courts almost always rule in favor of free speech, freedom of expression.

  27. Francis says

    The whole matter of this situation is, schools can regulate speech if that speech interferes with a schools’ basic ability to operate on all cylinders, basically, if someone is causing a disruption, and in this case this lady most certainly was by INTENTIONALLY TARGETING a group of people in a hateful way, on a day KNOWINGLY meant to promote equality, then the school is within their rights to tell her to take off the shirt. It’s not about the shirts being anti-gay or anything else, it’s about the schools themselves having rights.

  28. says

    “But these comments on Towleroad would have you believe that they ruled for the Phelps church because they were using anti-gay speech.”

    @BRAVOKILO: The Phelps case is very different from the school case. Many of us, including myself, believe the Supreme Court ruled correctly in the Phelps case, however repellent their speech may be. Your assertion that the court would have ruled the same in the school case if any other group had been targeted remains questionable. Maybe, maybe not.

    Schools have traditionally been given wide latitude in determining the sorts of speech students can bring into the school environment. Targeting fellow students for ridicule through biased speech could very well be seen as disruptive to the targeted student’s learning. It doesn’t surprise me that lower courts ruled the other way. There are many things that can be said in the public sphere that are not allowed in schools.

  29. MrRoboto says

    I’ll wear a shirt that says “Be Christ-like, not Christian,” but I suspect most who consider themselves Christians wouldn’t get it.

  30. IonMusic says

    This ruling infers being gay is a choice…that we made the choice to behave this way and deserve any and all consequences for that choice. It does not take a scholar to read inbetween the lines to how this was worded.

    Time and time again, we as gays are the only acceptable group of people to voice militant disdain toward. I remember having a Jewish coworker fired from her job for jokingly saying a Jewish slang term (JAPS) out loud. The whole office thought her saying that (even jokingly) was the worst experience they endured, two people filed complaints, all sorts of accusations about it being offensive…I often think about how much derogatory terms and words we as gays endure and it’s perfectly acceptable yet if ANYONE says ANYTHING about ANY other group of people…..they are automatically fired. Automatically.

    When it comes to us…we’re constantly thrown under the bus. That’s why it is essential we as gays stick together, stop putting one another down, roll up our sleaves, get involved and get active. Any gay person with a spine and a conscience is an activist. We do not deserve to be treated less than…so get out there and make our voices heard for once. I know I’m doing my part.

  31. Kyle G. says

    Schools enforce dress codes of all kinds, in many you are not allowed to wear hats in school…why? it is a distraction to the learning process. They have that ability and guideline. To wear a shirt that says “don’t be gay” is the epitome of being disruptive for the purposes of being disruptive to a singled out group of students. In a school setting, it is enviromentally disruptive to that setting to wear a shirt that promotes that divide…and can indeed lead to distraction from learning at best, and at worst…unnecessary destruction and conflict.

    Many schools have banned far worse, and the question is, why is anti gay speech enabled to be displayed by students in that classroom setting?

    Ratbastard: you’ve a homophobe. We’ve all known and come to a decision that you’re here to troll. You’re “opinion” doesn’t hold weight here. You’ve been called out for your anti gay trolling many times before. Now go river dance off a cliff..would ya?

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