ACLU gets into Bolingbrook teen's T-shirt case

The ACLU may not like the content of a Bolingbrook student's speech, but the organization is defending his right to say it.

Or, in this case, wear it.

The ACLU filed a brief late last week with the U.S. Court of Appeals, 7th Circuit, arguing that sophomore Alexander Nuxoll should be allowed to wear a T-shirt to school that reads "Be Happy, Not Gay."

Neuqua Valley High School of Naperville has prohibited Nuxoll from wearing the message under its policy forbidding derogatory speech.

"If Nuxoll wants to wear a T-shirt … that says 'Be Happy, Not Gay,' (he) should be allowed to do so," said Adam Schwartz, attorney for the ACLU in a phone interview Monday.

Neuqua's policy of banning all derogatory speech is, Schwartz said, too broad and unconstitutional. The ACLU recommends that the courts strike it down.

But, Schwartz said, the group does not advocate completely unrestrained speech in schools, where the courts have long recognized that disruptive speech can sometimes be curtailed in order to fulfill the school's educational mission.

"It's 'anything goes' on city hall plaza, but it's not 'anything goes' at a high school," Schwartz said. "It's very fact-intensive. Sometimes the speech wins; sometimes the speech loses."

In schools, the test is whether the speech is so disruptive as to prohibit learning or so harassing or threatening to other students as to harm them emotionally or physically, he said.

Nuxoll has also indicated that he wants to be able to pass out literature and quote the Bible at school in his opposition to homosexuality, but the ACLU is recommending that the case be referred back to the district court to get a better idea of exactly what activities Nuxoll plans and whether they would be harassing or threatening.

"At least one Bible verse contain(s) threatening language," notes the ACLU's friend-of-the-court brief. "Leviticus 20:13 seems to require that men who have sex with men 'shall surely be put to death.' "

But the relatively benign "Be Happy, Not Gay," shouldn't be banned, Schwartz said.

Rick Garcia, director of the gay-rights group Illinois Equality, agreed.

"This phrase I don't think comes anywhere near the line (of impropriety)," Garcia said.

Nuxoll's lawyers, from the Alliance Defense Fund, could not be reached for comment Monday.

They are appealing a federal judge's decision to not impose a preliminary injunction that would force the high school to allow Nuxoll's shirt.

Nuxoll wants to wear the shirt in late April in response to the Day of Silence, a day high school students across the country express support for gay and lesbian students.

Neuqua Valley High School is allowing student activities on that event's behalf because the language -- or lack thereof -- is done in support of an idea or person, whereas "not gay" is a negative message and denigrates students, school officials said. The school had offered to let Nuxoll wear a shirt that read "Be Happy, Be Straight" as a compromise but was rejected.

The U.S. Court of Appeals has agreed to hear Nuxoll's appeal on an expedited basis and will hear oral arguments at 9:30 a.m. April 4 in downtown Chicago.

That may allow the court to rule in time for this year's Day of Silence on April 25 and a counter response, the Day of Truth, on April 28.