I'd blogged extensively on the Ninth Circuit's Harper v. Poway decision, which held that the First Amendment didn't protect a high school student's right to wear a T-shirt saying "Be Ashamed, Our School Embraced What God Has Condemned" and "Homosexuality is Shameful" -- even when there was no showing that the T-shirt posed a reasonable risk of disruption in the Tinker v. Des Moines Indep. School Dist. sense (for instance, of fighting and the like).
Now a similar case (Zamecnik v. Indian Priairie School Dist. #204 Bd. of Ed.) is brewing in the Seventh Circuit; at this point, it just led to a district court decision, but that's now being appealed. The district court decision, handed down Dec. 21, holds:
A school district may bar a student from wearing a "Be Happy, Not Gay" T-shirt (as a reaction to a pro-gay-rights event the day before), so long as the T-shirt would undermine the school's "policy of promoting tolerance and prohibiting derogatory comments based on protected categories." As in Harper, there's no need for the school to show that the T-shirt poses a reasonable risk of disruption under Tinker.
At the same time, the student has a "constitutional right to display 'Be Happy, Be Straight' on her t-shirt" at school, because "[t]here is no indication that such a message is inconsistent with the school's educational mission as was the 'Not Gay' message." "Since, on the previous day students were permitted to display messages supporting being homosexual, the next day's suppression of a message supporting being heterosexual should be understood as viewpoint discrimination under the facts assumed to be true for purposes of summary judgment."
It will be interesting to see what the Seventh Circuit has to say about item 1. It's not clear to me whether item 2 is going to be before the Seventh Circuit, since I haven't seen any evidence that the school district is appealing item 2 (nor am I sure that it's appealable, given the procedural posture of the case, though I'm happy to be enlightened further on this).