Zamecnik v. Indian Prairie Sch. Dist. No. 204 Bd. of Educ.

710 F.Supp.2d 711

Heidi ZAMECNIK and Alexander Nuxoll, Plaintiffs,

v.INDIAN PRAIRIE SCHOOL DISTRICT # 204 BOARD OF EDUCATION and Bryan Wells, individually and in his official capacity as Dean of Students Neuqua Valley High School, Defendants.

No. 07 C 1586.

United States District Court,

N.D. Illinois,

Eastern Division.

April 29, 2010.

Nathan W. Kellum, Jonathan A. Scruggs, Alliance Defense Fund, Memphis, TN, Agnes E. Grossman, Law Office of Richard D. Grossman, Jeffrey M. Schwab, Mauck & Baker, LLC, Chicago, IL, for Plaintiffs.

John F. Canna, Thomas J. Canna, Dawn Marie Hinkle, Joshua R. Runnels, Canna and Canna, Ltd., Orland Park, IL, for Defendants.

OPINION AND ORDER

WILLIAM T. HART, District Judge.

Alexander Nuxoll ("Nuxoll") and Heidi Zamecnik ("Zamecnik" or "Heidi") ¹ are, respectively, a current and former student at Neuqua Valley High School ("NVHS"), which is part of Indian Prairie School District No. 204 ("IPSD"). The high school is located in Naperville, Illinois, one of Chicago's most populous suburbs, and has approximately 4200 students, including a variety of races, religions, ethnic backgrounds, and sexual orientations. Zamecnik graduated in June 2007 and Nuxoll is currently a senior. The IPSD Board of Education and NVHS's Dean of Students are named as defendants.² Following this court's ruling on defendants' motion to dismiss, see Zamecnik v. Indian Prairie Sch. Dist. # 204 Bd. of Educ., 2009 WL 805654 (N.D.Ill. March 24, 2009) (" Zamecnik IV" ), the remaining claims are relatively narrow. Zamecnik seeks nominal damages for an incident in April 2006 during which she was precluded from wearing a t-shirt that stated "Be Happy, Not Gay." The Dean of Students modified the shirt to simply read "Be Happy." Nuxoll is seeking nominal damages for not beingable to display the message "Be Happy, Not Gay" on a t-shirt or button in April 2007. Also, Nuxoll continues to seek injunctive relief precluding a prohibition from expressing the message "Be Happy, Not Gay" on a t-shirt, button, or other media while at school. Despite the prior ruling narrowing the scope of potential equitable relief, Nuxoll is also seeking injunctive and declaratory relief based on a broader facial challenge to certain school rules. Presently pending is plaintiffs' motion for summary judgment.

On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Crawford v. Metropolitan Gov't of Nashville & Davidson County, Tenn., --- U.S. ----, 129 S.Ct. 846, 849, 172 L.Ed.2d 650 (2009); Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir.2009); Freeland v. Enodis Corp., 540 F.3d 721, 737 (7th Cir.2008). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Delta Consulting Group, Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th Cir.2009); Hicks v. Midwest Transit, Inc., 500 F.3d 647, 651 (7th Cir.2007); Creditor's Comm. of Jumer's Castle Lodge, Inc. v. Jumer, 472 F.3d 943, 946 (7th Cir.2007); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.2001). The nonmovant, however, must make a showing sufficient to establish any essential element for which he or it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir.2008); Hicks, 500 F.3d at 651. The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Freundt v. Allied Tube & Conduit Corp., 2007 WL 4219417 *2 (N.D.Ill. Nov. 29, 2007); O'Brien v. Encotech Constr., 2004 WL 609798 *1 (N.D.Ill. March 23, 2004). It is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Lorillard Tobacco Co. v. A & E Oil. Inc., 503 F.3d 588, 594-95 (7th Cir.2007); Yasak v. Retirement Bd. of Policemen's Annuity & Benefit Fund of Chicago, 357 F.3d 677, 679 (7th Cir.2004); NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 236 (7th Cir.1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir.1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.1988); Freundt, 2007 WL 4219417 at *2. As the Seventh Circuit has summarized:

The party moving for summary judgment carries the initial burden of production to identify "those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation and internal quotation omitted)). The moving party may discharge this burden by " 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party satisfies this burden, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The nonmovant must do more, however, than demonstrate some factual disagreement between the parties; the issue must be 'material.' " Logan, 96 F.3d at 978. "Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute." Id. (citation omitted).

In determining whether the nonmovant has identified a "material" issue of fact for trial, we are guided by the applicable substantive law; "[o]nly disputes that could affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298 (7th Cir.1996) (citation omitted). Furthermore, a factual dispute is "genuine" for summary judgment purposes only when there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Hence, a "metaphysical doubt" regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and "the nonmovant fails to demonstrate a genuine issue for trial 'where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party....' " Logan, 96 F.3d at 978 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

Outlaw, 259 F.3d at 837.

Legal parameters for this case have been established by the Seventh Circuit's ruling regarding the grant of a preliminary injunction. See Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668 (7th Cir.2008) (" Nuxoll" ). On the facts before it, the Seventh Circuit held that it would be a First Amendment violation to prevent Nuxoll from displaying the message "Be Happy, Not Gay" while at NVHS, there being insufficient proof of "facts which might reasonably lead school officials to forecast substantial disruption." Nuxoll, 523 F.3d at 673-76 (quoting Boucher v. School Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 827-28 (7th Cir.1998) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969))). The same result should be reached on the pending summary judgment motion unless the facts assumed to be true for purposes of summary judgment are materially different from the facts that were before the Seventh Circuit. Also, there may be issues presently before the court that were not before the Seventh Circuit. Cf. id. at 676.

Plaintiffs contend the Seventh Circuit simply applied the standard set forth in Tinker.³Nuxoll does apply the general standard derived from Tinker that high school officials may justify the suppression of student speech based on "facts which might reasonably lead school officials to forecast substantial disruption." Nuxoll, 523 F.3d at 673 (quoting Boucher, 134 F.3d at 827-28 (quoting Tinker, 393 U.S. at 514, 89 S.Ct. 733)). The Seventh Circuit construed the meaning of "substantial disruption" in light of the precedents that followed Tinker. It was noted that Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007), clearly establishes that encouraging the use of illegal drugs is speech that causes a substantial disruption and that Morse also stands for the principle that a substantial disruption need not be violent in nature, but can be based on the potential psychological effect on students. Nuxoll, 523 F.3d at 674. Particularly in light of Morse and Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), the Seventh Circuit concluded "that if there is reason to think that a particular type of student speech will lead to a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school-symptoms therefore of substantial disruption-the school can forbid the speech." Nuxoll, 523 F.3d at 674. The burden is on NVHS to point to facts which might reasonably lead school officials to forecast substantial disruption.

The Seventh Circuit notes that defendants' written "rule forbidding 'derogatory comments,' oral or written, 'that refer to race, ethnicity, religion, gender, sexual orientation, or disability,' " id. at 670, "appears to satisfy this test. It seeks to maintain a civilized school environment conducive to learning, and it does so in an even-handed way. It is not as if the school forbade only derogatory comments that refer, say, to religion, a prohibition that would signal a belief that being religious merits special protection. The list of protected characteristics in the rule appears to cover the full spectrum of highly sensitive personal-identity characteristics. And the ban...