Legal Commentary

Seventh Circuit Reaffirms High School Students? Rights to Wear ?Be Happy, Not Gay? T-Shirts

By Eugene Volokh

The opinion is Zamecnik v. Indian Prairie School Dist. #204 (decided today) (Posner, J.), and it reaffirms the panel?s decision in an earlier phase of the case.

On balance the opinion seems slightly more speech protective than the earlier one, because it doesn?t rely on Morse v. Frederick (as the earlier opinion did in some measure), and because it expressly notes that the precedents do not support ?a generalized ?hurt feelings? defense to a high school?s violation of the First Amendment rights of its students.? And though the court acknowledges that Tinker v. Des Moines Independent Community School District authorizes the restriction of speech when there?s a substantial likelihood of a substantial disruption, it concludes that on these facts the likelihood wasn?t demonstrated. So it?s a mild win for student speech in K-12 schools, though given Tinker any broader wins would be unlikely.

The opinion also expresses some skepticism about the report by the school district?s expert, which purported to show that the slogan would indeed cause substantial disruption. School district lawyers ? and experts ? should note the court?s reasoning for the future.

Full post as published by The Volokh Conspiracy on March 01, 2011 (boomark / email).