## Facts

- Neuqua Valley High School students participated in a “Day of Silence” event intended to call attention to harassment of homosexual students; participants remained silent and some wore pro-tolerance T-shirts.
- Students who disapproved of homosexuality organized a “Day of Truth” the next school day.
- A student wore a shirt stating “Be Happy, Not Gay.”
- The school district enforced a policy banning “derogatory” oral or written comments at school about specified characteristics, including sexual orientation.
- A school official required the “Not Gay” portion of the shirt to be inked out, leaving “Be Happy.”
- Alexander Nuxoll sought to wear the unaltered “Be Happy, Not Gay” shirt and claimed the policy, as applied, violated his First Amendment rights.
- Nuxoll sued and moved for a preliminary injunction; the district court denied relief, and Nuxoll appealed.

## Issues

1. Whether the First Amendment permits a public school to prohibit a student from wearing a “Be Happy, Not Gay” T-shirt under a policy banning “derogatory” comments about sexual orientation.
2. Whether, under the preliminary-injunction standard, the student showed a reasonable probability of success that the ban violated Tinker by lacking a sufficient forecast of substantial disruption or invasion of others’ rights through actionable harassment.

## Decision

- The Seventh Circuit reversed the denial of a preliminary injunction in part and remanded.
- The court directed entry of a narrowly drawn preliminary injunction allowing Nuxoll to wear the “Be Happy, Not Gay” shirt, with reasonable time, place, and manner limits if needed.
- The record did not support a reasonable forecast that the shirt would materially and substantially disrupt school operations.
- The slogan, though negative toward homosexuality, was not lewd, obscene, or an incitement to illegal conduct, and it was not shown to constitute actionable harassment on this record.
- Because loss of First Amendment freedoms constitutes irreparable harm, the balance of harms favored the student absent a strong showing the claim was weak.

## Legal Principles

- Under Tinker, schools may restrict student speech only if they can reasonably forecast material and substantial disruption or a concrete invasion of the rights of other students.
- Offensive or controversial viewpoint-based student speech is generally protected if it is not vulgar, not school-sponsored, and not shown likely to cause substantial disruption.
- Schools may discipline speech that amounts to harassment—particularly repeated, targeted, personal derogatory remarks—when it is likely to interfere with a student’s ability to access education.
- A generalized, one-time expression on a T-shirt is less likely to qualify as harassment than persistent, individualized abuse; suppression requires more than fear of controversy or hurt feelings.
- In preliminary-injunction litigation involving speech, irreparable injury is presumed from ongoing First Amendment violations; relief may be crafted narrowly to address demonstrated risks.

## Conclusion

The Seventh Circuit held that the school district had not justified, at the preliminary-injunction stage, a categorical ban on a student’s “Be Happy, Not Gay” T-shirt under an anti-derogatory-comments policy because the record did not show a sufficient likelihood of substantial disruption or actionable harassment, and it ordered a narrow injunction permitting the shirt subject to reasonable restrictions if necessary.


Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. No. 204, 523 F.3d 668 (7th Cir. 2008)