In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2485, 10-3635
H EIDI Z AMECNIK and A LEXANDER N UXOLL,
Plaintiffs-Appellees,
v.
INDIAN P RAIRIE S CHOOL D ISTRICT # 204, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 1586—William T. Hart, Judge.
A RGUED JANUARY 19, 2011—D ECIDED M ARCH 1, 2011
Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
P OSNER, Circuit Judge. These consolidated appeals
(functionally one appeal, and we’ll treat them as such)
are a sequel to an appeal we decided almost three years
ago, Nuxoll v. Indian Prairie School Dist. # 204, 523 F.3d 668
(7th Cir. 2008). The plaintiffs, two students at Neuqua
Valley High School, a large public high school in
Naperville, Illinois, had sued the school district (and
school officials, whom we can ignore—we’ll call the
2 Nos. 10-2485, 10-3635
defendants, collectively, “the school”) for infringing
their right of free speech by forbidding them to make
a specific negative statement about homosexuality. They
moved for a preliminary injunction, which the district
judge denied. They appealed, and we reversed, directing
the district judge to enter forthwith a preliminary injunc-
tion that would permit plaintiff Nuxoll (Zamecnik having
graduated) to wear during school hours a T-shirt that
recites “Be Happy, Not Gay.” Nuxoll’s right to wear
it outside of school is not questioned.
A private group called the Gay, Lesbian, and Straight
Education Network promotes an annual event called
the Day of Silence that is intended to draw critical atten-
tion to harassment of homosexuals; the idea behind
the name is that homosexuals are silenced by harass-
ment and other discrimination. Students participate in
the Day of Silence by remaining silent throughout the
day except when called upon in class, though some
teachers, as part of their own observance of the Day of
Silence, will not call on students that day. Some
students and faculty wear T-shirts on the Day of Silence
that display slogans such as “Be Who You Are.” None of
the slogans criticizes heterosexuality or advocates homo-
sexuality, though “Be Who You Are” carries the sugges-
tion that persons who are homosexual should not be
ashamed of the fact or try to change it.
The plaintiffs, who disapprove of homosexuality on
religious grounds, participated (we use the past tense
because both have now graduated) with other like-
minded students in a Day of Truth held on the first school
Nos. 10-2485, 10-3635 3
day after the Day of Silence. Plaintiff Zamecnik wore a
shirt that read “My Day of Silence, Straight Alliance” on
the front and “Be Happy, Not Gay” on the back. A school
official inked out the phrase “Not Gay” and has banned
display of the slogan as a violation of a school rule for-
bidding “derogatory comments,” spoken or written, “that
refer to race, ethnicity, religion, gender, sexual orientation,
or disability” (emphasis added). He did not object to
the slogan on the front of the shirt.
The plaintiffs assert a constitutional right to make
negative statements about members of any group pro-
vided the statements are not inflammatory—that is, are
not “fighting words,” which means speech likely to
provoke a violent response amounting to a breach of the
peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73
(1942). They concede that they could not inscribe “homo-
sexuals go to Hell” on their T-shirts because those are
fighting words, at least in a high-school setting, and so
could be prohibited despite the fact that they are
speech, disseminating an opinion. R.A.V. v. City of
St. Paul, 505 U.S. 377, 386 (1992).
When last this case was here, we expressed (and we
repeat our expression of) sympathy (thought exces-
sive by Judge Rovner in her concurring opinion, 523
F.3d at 676-80) for an expansive interpretation of the
“fighting words” doctrine when the speech in question
is that of students. We noted that the contribution that
kids can make to the marketplace of ideas and opinions
is modest (Judge Rovner disagreed) and we emphasized
(overemphasized, in her view) a school’s countervailing
4 Nos. 10-2485, 10-3635
interest in protecting its students from offensive speech
by their classmates that would interfere with the
learning process—though we added that because 18-year-
olds can now vote, high-school students should not be
“raised in an intellectual bubble,” American Amusement
Machine Ass’n v. Kendrick, 244 F.3d 572, 577 (7th Cir.
2001), which would be the tendency of forbidding all
discussion of public issues by such students during
school hours. (Hence the younger the children, the more
latitude the school authorities have in limiting expression.
Muller ex rel. Muller v. Jefferson Lighthouse School, 98
F.3d 1530, 1538-39 (7th Cir. 1996).)
Thus a school that permits advocacy of the rights of
homosexual students cannot be allowed to stifle criticism
of homosexuality. 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). Although tolerance of homosexuality has
grown, gay marriage remains highly controversial.
Today’s high school students may soon find themselves,
as voters, asked to vote on whether to approve gay mar-
riage, or to vote for candidates who approve of it, or
ones who disapprove.
In asking for a preliminary injunction Nuxoll acknowl-
edged 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 “homo-
sexuality is shameful”—terms held, perhaps question-
ably—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. To justify prohibiting their display
the school would have to present “facts which might
reasonably lead school officials to forecast substantial
disruption.” Tinker v. Des Moines Independent Community
School District, 393 U.S. 503, 514 (1969); see Boucher v.
School Board of School District of Greenfield, 134 F.3d 821, 827-
28 (7th Cir. 1998); Walker-Serrano ex rel. Walker v. Leonard,
supra, 325 F.3d 412, 416 (3d Cir. 2003); LaVine v. Blaine
School District, 257 F.3d 981, 989 (9th Cir. 2001). Such
facts might include a decline in students’ test scores,
an upsurge in truancy, or other symptoms of a sick
school—but the school had presented no such facts in
response to the motion for a preliminary injunction.
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. Specula-
tion 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.
Not that Tinker’s “substantial disruption” test has
proved a model of clarity in its application. The cases
have tended to rely on judicial intuition rather than on
data, and the intuitions are sometimes out of date. For
example, although it’s been ruled that “lewd, vulgar,
obscene, or plainly offensive speech” can be banned
from a school, Canady v. Bossier Parish School Bd., 240
F.3d 437, 442 (5th Cir. 2001), the authority for the rul-
ing—Bethel School District No. 403 v. Fraser, 478 U.S. 675,
680-82 (1986)—involved student speech that, from the
perspective enabled by 25 years of erosion of refinement
in the use of language, seems distinctly lacking in
shock value (e.g., “I know a man who is firm—he’s firm
in his pants, he’s firm in his shirt, his character is
firm—but most . . . of all, his belief in you, the students
of Bethel, is firm,” id. at 687 (concurring opinion)). An
example of school censorship that courts have
authorized on firmer grounds is forbidding display of
the Confederate flag, as in Defoe ex rel. Defoe v. Spiva,
625 F.3d 324, 333-36 and n. 6 (6th Cir. 2010); Scott v.
School Board of Alachua County, 324 F.3d 1246, 1248-49 (11th
Cir. 2003) (per curiam), and West v. Derby Unified School
District No. 260, 206 F.3d 1358, 1361, 1365-66 (10th Cir.
2000)—cases in which serious racial tension had led to
outbursts of violence even before the display of the flag,
Nos. 10-2485, 10-3635 7
which is widely regarded as racist and incendiary.
Boroff v. Van Wert City Board of Education, 220 F.3d 465, 467,
469-71 (6th Cir. 2000), involved T-shirts that depicted a
three-faced Jesus, accompanied by the words “See No
Truth. Hear No Truth. Speak No Truth” and advocated,
albeit obliquely, the use of illegal drugs, a form of advo-
cacy in the school setting that can be prohibited without
evidence of disruption. Morse v. Frederick, 551 U.S. 393, 406-
10 (2007).
These cases, more extreme than ours, do not establish
a generalized “hurt feelings” defense to a high school’s
violation of the First Amendment rights of its students.
“A particular form of harassment or intimidation can
be regulated . . . only if . . . the speech at issue gives rise
to a well-founded fear of disruption or interference
with the rights of others.” Sypniewski v. Warren Hills
Regional Bd. of Education, 307 F.3d 243, 264-65 (3d Cir.
2002). The same court, in Saxe v. State College Area School
District, 240 F.3d 200, 209 (3d Cir. 2001), found “little
basis for the District Court’s sweeping assertion that
‘harassment’—at least when it consists of speech targeted
solely on the basis of its expressive content—’has never
been considered to be protected activity under the
First Amendment.’ Such a categorical rule is without
precedent in the decisions of the Supreme Court or this
Court, and it belies the very real tension between anti-
harassment laws and the Constitution’s guarantee of
freedom of speech.” Severe harassment, however, blends
insensibly into bullying, intimidation, and provocation,
which can cause serious disruption of the decorum and
peaceable atmosphere of an institution dedicated to the
8 Nos. 10-2485, 10-3635
education of youth. School authorities are entitled to
exercise discretion in determining when student speech
crosses the line between hurt feelings and substantial
disruption of the educational mission, because they
have the relevant knowledge of and responsibility
for the consequences.
As Judge Rovner explained in her concurring opinion
in the previous appeal, “the statement [’Be Happy,
Not Gay’] is clearly intended to derogate homosexuals.
Teenagers today often use the word ‘gay’ as a generic term
of disparagement. They might say, ‘That sweater is so
gay’ as a way of insulting the look of the garment. In
this way, Nuxoll’s statement is really a double-play on
words because ‘gay’ formerly meant ‘happy’ in common
usage, and now ‘gay,’ in addition to meaning ‘homosexual’
is also often used as a general insult. Nuxoll’s statement
easily fits the school’s definition of ‘disparaging’ and
would meet that standard for most listeners . . . . [T]here
is no doubt that the slogan is disparaging . . . . [But] it is
not the kind of speech that would materially and sub-
stantially interfere with school activities. I suspect that
similar uses of the word ‘gay’ abound in the halls of
[Neuqua Valley High School] and virtually every other
high school in the United States without causing any
substantial interruption to the educational process.” 523
F.3d at 679. Judge Rovner warned that the fact that
schools “are educating the young for citizenship is
reason for scrupulous protection of Constitutional free-
doms of the individual, if we are not to strangle the
free mind at its source . . . . The First Amendment . . .
is consistent with the school’s mission to teach by en-
Nos. 10-2485, 10-3635 9
couraging debate on controversial topics while also
allowing the school to limit the debate when it becomes
substantially disruptive. Nuxoll’s slogan-adorned t-shirt
comes nowhere near that standard.” Id. at 679-80.
The preliminary injunction issued on remand permitted
Nuxoll to wear during school hours a T-shirt that
recites “Be Happy, Not Gay.” Pretrial discovery ensued.
Eventually the district judge granted summary judg-
ment in favor of the plaintiffs, awarded each of them $25
in damages for the infringement of their constitutional
rights, and later entered a permanent injunction, which
differs from the preliminary one in running in favor of
any student and in not being limited to the display of
the slogan on a T-shirt; for “T-shirt” the permanent in-
junction substitutes “clothing or personal items.”
The judge had granted summary judgment against
the school district on April 29, 2010, after classes had
ended but before final exams. By the time he entered the
permanent injunction, on May 20, Nuxoll was about to
graduate. (Zamecnik was long gone.) All that remained
for graduating seniors to do was to participate in a
few ceremonial events culminating in the graduation
ceremony on May 23. The school argues that injunctive
relief was moot on May 20 because Nuxoll had no
occasion to wear his “Be Happy, Not Gay” T-shirt at the
ceremonial events, and did not. But remember that the
injunction had been broadened to permit the display of
the slogan on other clothing as well, and so he could by
virtue of the injunction have displayed it on his gradua-
tion gown had he wanted to.
10 Nos. 10-2485, 10-3635
The school points out that the graduation wasn’t held
on school grounds and that the injunction doesn’t apply
to the display of the slogan elsewhere; that’s because
the school has never asserted a right to control speech
off school property. But it would very much like to
control it at the graduation ceremony, and so treats the
venue of the ceremony as temporary school grounds, as
by imposing a dress code on the graduating students
and enforcing its school rules against drunkenness and
other disruptive behavior—and it regards the display
of the slogan “Be Happy, Not Gay” as disruptive.
The claim of mootness evaporates completely when one
notes that the permanent injunction runs in favor of any
student at the high school, not just Nuxoll; it is not
unlikely that one or more of its 4,000-plus students may
someday want to display the slogan. Injunctions often
run in favor of unnamed members of a group, and this
is proper as long as the group is specified. Rule 65(d)(1)(C)
of the Federal Rules of Civil Procedure requires that an
injunction “describe in reasonable detail . . . the act or
acts restrained or required,” but the rule does not
require that the injunction name the parties who may
enforce the injunction. See, e.g., Wisconsin Action Coalition
v. City of Kenosha, 767 F.2d 1248 (7th Cir. 1985). “When
the court believes the underlying right to be highly sig-
nificant, it may write injunctive relief as broad as the
right itself.” 1 Dan B. Dobbs, Law of Remedies § 2.4(6), p. 113
(2d ed. 1993). And Rule 71 authorizes nonparties to
seek enforcement of an injunction that “grants relief for
a nonparty or may be enforced against a nonparty.”
Nos. 10-2485, 10-3635 11
The school’s main argument is that the district judge
entered summary judgment prematurely. He did if the
school presented enough evidence to warrant an eviden-
tiary hearing to determine whether the school had had
a reasonable belief that it faced a threat of substantial
disruption. To carry its burden it presented three types
of evidence: incidents of harassment of homosexual
students; incidents of harassment of plaintiff Zamecnik;
and the report of an expert which concluded that the
slogan “Be Happy, Not Gay” was “particularly insidious.”
The first type of evidence was negligible: a handful of
incidents years before the T-shirt was first worn, in a
school with thousands of students. The evidence
consists, moreover, of just the affidavit and deposition
of a single school district official, which merely repeats
statements by other, unidentified school officials
repeating statements by unidentified students. The depo-
nent described but could not confirm the details of the
incidents—and admitted that because the allegations of
harassment had not been confirmed, no students had
been disciplined.
The second type of evidence was barred by the doctrine,
unmentioned by the school, of the “heckler’s veto.” Brown
v. Louisiana, 383 U.S. 131, 133 n. 1 (1966); Tinker v. Des
Moines Independent Community School District, supra, 393
U.S. at 508-09; Terminiello v. City of Chicago, 337 U.S. 1, 4-5
(1949); Hedges v. Wauconda Community Unit School Dist.
No. 118, 9 F.3d 1295, 1299-1300 (7th Cir. 1993). Statements
that while not fighting words are met by violence or
threats or other unprivileged retaliatory conduct by
12 Nos. 10-2485, 10-3635
persons offended by them cannot lawfully be sup-
pressed because of that conduct. Otherwise free speech
could be stifled by the speaker’s opponents’ mounting a
riot, even though, because the speech had contained no
fighting words, no reasonable person would have been
moved to a riotous response. So the fact that homosexual
students and their sympathizers harassed Zamecnik
because of their disapproval of her message is not a
permissible ground for banning it.
Two of the cases that endorse the doctrine of the heck-
ler’s veto, Tinker and Hedges, are school cases, but Tinker
is also the source of the substantial disruption test of
permissible school censorship. See 393 U.S. at 509. A city
can protect an unpopular speaker from the violence of
an angry audience by deploying police, but that is hardly
an apt response to students enraged by a T-shirt. A school
has legitimate responsibilities, albeit paternalistic in
character, toward the immature captive audience that
consists of its students, including the responsibility of
protecting them from being seriously distracted from
their studies by offensive speech during school hours.
But the anger engendered by Zamecnik’s wearing a T-
shirt that said “Be Happy, Not Gay” did not give rise
to substantial disruption. It was not her wearing the
shirt, but her filing this lawsuit, that engendered the
creation of a Facebook group entitled “Be Happy! Not
Heidi” [Zamecnik’s first name] in which hundreds of
comments were posted, many hostile to her. But only
one was a threat (“someone tells me where she lives, i will
fuck up her house, car, and whatever else i can find”), and
Nos. 10-2485, 10-3635 13
it provoked a sensible comment from another student:
“you sound [when making threats] just as stupid as she
does.” Many of the comments addressed substantial
issues involving First Amendment claims, school policies,
treatment of homosexual students, and the role of the
media in the dispute; and apart from the obsessive use
of expletives—a defining feature of modern American
culture, by no means limited to teenagers—the discussion
of the issues was substantive, and even, to a degree,
thoughtful. Here are typical comments: “The social
studies teachers are going to be having a department
meeting right after Spring Break in order to be able to
discuss this whole law suit in an educational way, to
bring up some really meaningful discussion. More than
anything, this case boils down to an issue of constitu-
tional rights. And frankly, school rules override the
constitutional rights of minors in the public school sys-
tem. The school has the right to search and seizure at any
time, despite constitutional law. Similarly, ‘free speech’
doesn’t apply in public schools, because school rules are
more specific”; “I’m very glad that so many people are
banding together against discrimination, just please go
about it in a classy and mature way; just like Ana said on
the message board, don’t stoop to her [Zamecnik’s] level”;
“Heidi isn’t suing because she hates gays, she’s suing
because she was harassed for being active in what she
believes in. I also think that if you were put in her situa-
tion, you’d fight tooth and nail to get whatever fucking
point it is you are trying to get across. With every good,
there is the bad. You have to take it in stride, not make up
some stupid community making fun of someone. Heidi
14 Nos. 10-2485, 10-3635
is actually a really nice person who is just misguided by
religion and a closed mind.”
Zamecnik’s parents asked the school to allow a body-
guard to accompany her to class on the 2007 Day of
Silence. Her mother said she was worried by the “threats
that these particular students had made against Heidi
expressing her view.” The school did not allow the body-
guard but did have a female staff member escort
Zamecnik from class to class on that day. She decided
not to wear her “Be Happy, Not Gay” shirt. There were
no serious incidents, though it is possible that a water
bottle that was thrown and struck one of her friends
had been aimed at her.
That leaves for consideration the expert’s report.
Stephen T. Russell has a Ph.D. in sociology and is a pro-
fessor of family and consumer sciences at the University
of Arizona. His 38-page report, 29 pages of which are
devoted to his impressive curriculum vitae, establishes
that he’s qualified to give expert testimony on matters
relating to the attitudes and behavior of teenagers, with
special reference to teenagers who belong to minorities,
including sexual minorities—including therefore homo-
sexual high-school students. Yet the “analysis and opin-
ions” section of his report, minus its bibliographical
references, is less than two and a half pages long and can
satisfy none of the requirements for admissible expert
testimony that are set forth in Rule 702 of the Federal
Rules of Evidence: “(1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has
Nos. 10-2485, 10-3635 15
applied the principles and methods reliably to the facts
of the case.”
All that the report says, in seven numbered paragraphs,
is that: (1) harassment, particularly verbal, of homosexual
students is common in schools; (2) schools should there-
fore have anti-harassment policies; (3) harassed students
“are at risk for negative educational and health outcomes”;
(4) “homophobic slurs and derogatory remarks” create
a risk of “disruptive behavior including student victimiza-
tion and violence”; (5) school districts can lose state
funding “when students miss school because of feeling
unsafe due to anti-gay bullying”; (6) the Day of Silence
does not “promote homosexual conduct” or “promote the
idea that homosexual conduct should be endorsed by
society”; (7) “the phrase ‘be happy, not gay’ is not ‘tepid’
in a public school setting” and indeed “is particularly
insidious because it references a long-standing stereo-
type that gay people are unhappy, yet appears to be a
simple play on words.” Points 1 through 6 are plausible
inferences from the research that Dr. Russell has either
conducted or cites in his report, or so at least we’ll
assume, though he does not discuss any of that re-
search—just lists citations.
Point 7, however, which is the punchline, comes out
of nowhere. There is nothing in the report to indicate
that Russell knows anything about Neuqua Valley High
School, for there is no reference to the school in the
report. No example is given of “particularly insidious”
statements about homosexuals. No example is given of a
“homophobic slur” or “derogatory remark” about them
16 Nos. 10-2485, 10-3635
that has ever been uttered in any school, or elsewhere
for that matter. Though the report calls “be happy, not
gay” particularly insidious, it does not indicate what
effects it would be likely to have on homosexual stu-
dents. It gives no indication of what kind of data or study
or model Russell uses or other researchers use to
base a prediction of harm to homosexual students on
particular “negative comments.” No methodology is
described. No similar research is described.
In the idiom of Rule 702, the expert’s report contains no
indication of the “facts or data” relied on, no indication
that testimony based on the report would be “the product
of reliable principles and methods,” and no indication
that in formulating his opinion the expert “applied the
principles and methods reliably to the facts of the case.”
Dr. Russell is an expert, but fails to indicate, however
sketchily, how he used his expertise to generate his con-
clusion. Mere conclusions, without a “hint of an
inferential process,” are useless to the court. Mid-State
Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333, 1339-
40 (7th Cir. 1989); see also General Electric Co. v. Joiner,
522 U.S. 136, 146 (1997); Clark v. Takata Corp., 192 F.3d 750,
758-59 (7th Cir. 1999); Wittmer v. Peters, 87 F.3d 916, 920
(7th Cir. 1996); Southern Grouts & Mortars, Inc. v. 3M Co.,
575 F.3d 1235, 1245 (11th Cir. 2009) (per curiam). Russell’s
is as thin an expert-witness report as we’ve seen.
One issue remains: the school challenges the award of
damages to the plaintiffs, despite the modesty of the
award. The award was justified. Both plaintiffs were
injured, though only slightly (but $25 does not exag-
gerate the harm), by the school’s violation of their con-
Nos. 10-2485, 10-3635 17
stitutional rights. Zamecnik’s shirt was defaced and
Nuxoll’s desire to wear the T-shirt on multiple occasions
in 2007 was thwarted by fear of punishment.
The district judge was right to grant summary judg-
ment in favor of the plaintiffs, and the relief ordered
is justified by the record.
A FFIRMED.
3-1-11