Kudos to Judge Ilana Rovner on the Seventh Circuit for her concurring opinion in Nuxoll v. Indian Prairie School District.
A student in a suburban Chicago high school wanted to wear a "Be Happy, Not Gay" t-shirt on a Day of Silence – a date identified both nationally (and by the school’s gay/straight alliance) as a time to draw attention to harrassment of gay people. The school sought to bar the boy from wearing this shirt through the halls of Neuqua Valley High School, in Naperville, Illinois. He sought a preliminary injunction against the school’s action (which was denied) and he appealed to the Seventh Circuit.
In a tepid opinion, Judge Posner reversed the trial court. Judge Rovner roared in concurrence. She strongly backed the Supreme Court’s decision protecting student speech in Tinker v. Des Moines Indpendent Community School District – and particularly worried that majority had improperly recast it as a case about viewpoint discrimination. She also made powerful claims for the role of youth in shaping society and initiating political change. She did not treat the t-shirt as deep political claimsmaking, but she accorded the issues of sexual orientation and identity deep respect by demanding that students be allowed to engage the issue in the high school. One can easily make the case that the very act of suppressing Nuxoll’s viewpoint, in this context, diminishes the seriousness of the issue in contention.
I particularly liked this passage:
I heartily disagree with my brothers about the value of the speech and speech rights of high school students, which the majority repeatedly denigrates. Youth are often the vanguard of social change. Anyone who thinks otherwise has not been paying attention to the civilrights movement, the women’s rights movement, the anti-war protests for Vietnam and Iraq, and the recent presidential primaries where the youth voice and the youth vote are having a substantial impact. And now youth are leading a broad, societal change in attitude towards homosexuals, forming alliances among lesbian, gay, bisexual, transgendered (“LGBT”) and heterosexual students to discuss issues of importance related to sexual orientation. They have initiated a dialogue inwhich Nuxoll wishes to participate. The young adults to whom the majority refers as “kids” and “children” are either already eligible, or a few short years away from being eligible to vote, to contract, to marry, to serve in the military, and to be tried as adults in criminal prosecutions. To treat them as children in need of protection from controversy, to blithely dismiss their views as less valuable than those of adults, is contrary to the values of the First Amendment.
In Larry Solum’s words, get it while it’s hot!
H/T to How Appealing.