The case is *Zamecnik v. Indian Prairie School Dist. #204 * and a link to the decision is provided below.
There was a designated day in which students were permitted to advocate for the rights of gay students, and the next day students wanted to express a message the court characterizes as criticism of homosexuality, by wearing a t-shirt with the slogan “Be happy, not gay.” The school would not permit the words “not gay” to be displayed on the t-shirt.
The 7th Circuit decided, “Thus a school that permits advocacy of the rights of
homosexual students cannot be allowed to stifle criticism of homosexuality.”
The 7th Circuit then dispensed with the argument the school was seeking to protect its students, the speech was hate speech, and derogatory. “The school argued (and still argues) that banning “Be Happy, Not Gay” was just a matter of
protecting the “rights” of the students against whom derogatory comments are directed. But people in our society do not have a legal right to prevent criticism of
their beliefs or even their way of life. R.A.V. v. City of
St. Paul, supra, 505 U.S. at 394; Boos v. Barry, 485 U.S. 312,
321 (1988)…In asking for a preliminary injunction Nuxoll acknowledged
that “Be Happy, Not Gay” was one of the“negative comments” about homosexuality that he Nos. 10-2485, 10-3635 5 thought himself entitled to make. But we said that unlike “homosexuals go to Hell,” which he concedes are “fighting words” in the context of a school (and unlike “I will not accept what God has condemned” and “homosexuality is shameful”—terms held, perhaps questionably— unless euphemism is to be the only permitted mode of expressing a controversial opinion—to be fighting words in Harper v. Poway Unified School District, 445 F.3d 1166, 1171 (9th Cir. 2006), vacated as moot, 549
U.S. 1262 (2007)), “Be Happy, Not Gay” is not an instance
of fighting words.”
The Court finally concluded this speech did not materially and substantially disrupt the educational process.
"In this factual vacuum, we described “Be Happy, Not Gay” as “only tepidly negative,” saying that “derogatory” or “demeaning” seemed too strong a characterization. 523 F.3d at 676. As one would expect in a high school of
more than 4,000 students, there had been incidents of harassment of homosexual students. But we thought it speculative that allowing the plaintiff to wear a T-shirt that said “Be Happy, Not Gay” “would have even a
6 Nos. 10-2485, 10-3635 slight tendency to provoke such incidents, or for that
matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the
exercise of a student’s free speech.” Id.