In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-2485, 10-3635

HEIDI ZAMECNIK and ALEXANDER NUXOLL,

Plaintiffs-Appellees,

v.

INDIAN PRAIRIE SCHOOL DISTRICT # 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.

ARGUED JANUARY 19, 2011—DECIDED MARCH 1, 2011

Before POSNER, KANNE, and ROVNER, Circuit Judges.

POSNER, 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 injunction 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 attention to harassment of homosexuals; the idea behind

the name is that homosexuals are silenced by harassment 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 homosexuality, though “Be Who You Are” carries the suggestion 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 likeminded 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 forbidding “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 provided 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 “homosexuals 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 excessive 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-yearolds 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 marriage, or to vote for candidates who approve of it, or

ones who disapprove.

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. 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. 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.

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 ruling—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 advocacy 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 antiharassment 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 substantially 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 freedoms 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 judgment 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 injunction 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 graduation 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 significant, 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 evidentiary 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 deponent 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 suppressed 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 heckler’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 Tshirt 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 constitutional rights. And frankly, school rules override the

constitutional rights of minors in the public school system. 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 situation, 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 bodyguard 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 bodyguard 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 professor 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 homosexual high-school students. Yet the “analysis and opinions” 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 therefore 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 victimization 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 stereotype 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 research—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 students. 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 conclusion. 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 exaggerate 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 judgment in favor of the plaintiffs, and the relief ordered

is justified by the record.

AFFIRMED.

3-1-11