ZAMECNIK v. INDIAN PRAIRIE SCHOOL DISTRICT (March 1, 2011)

Heidi Zamecnik and Alexander Nuxoll were public high school students who opposed homosexuality on religious grounds. In response to a "Day of Silence" promoted by a group critical of those who harassed homosexuals, they participated in a "Day of Truth" the next following school day. Zamecnik wore a shirt bearing the phrase "Be Happy, Not Gay." A school official covered the words "Not Gay" and prohibited the phrase as a violation of the school’s rule against derogatory comments. Zamecnik and Nuxoll brought suit and sought a preliminary injunction. The district court denied the application for an injunction. Almost 3 years ago, the Court reversed. The Court reviewed the phrase as "only tepidly negative" and concluded that the school district presented insufficient facts to support a conclusion that the words would lead to substantial disruption under Tinker. Judge Hart (N.D. Ill.) eventually granted summary judgment to the plaintiffs, awarded each $25 in damages, and entered a permanent injunction. The permanent injunction is more expansive than the preliminary one in that it runs in favor of all students and includes not just shirts but also all clothing and personal items. The District appeals.

In their opinion, Judges Posner, Kanne, and Rovner affirmed. The Court first rejected the District's argument that injunctive relief was moot because Zamecnik had graduated and Nuxoll had finished his classes and was about to graduate. The Court noted that the injunction now runs in favor of all students, not just the named plaintiffs. Such an injunction is proper as long as the group is specified. The District then argued that it presented enough evidence to survive summary judgment. The Court considered the three types of evidence presented. The first was "negligible" -- an affidavit of a school official recounting statements by unidentified school officials themselves recounting statements by unidentified students purportedly identifying incidents of homosexual harassment. The second type was evidence of the harassment of Zamecnik. But statements that are otherwise permissible cannot be suppressed simply because they are met by violence or harassment by those who oppose the speaker's view. In addition, the harassment was not engendered by the T-shirt, but by the lawsuit. The third piece of evidence presented by the District was an expert report, of which the Court was particularly critical. The opinion section of the expert’s 38-page expert report consisted of 2 1/2 pages and, in the Court's view, failed to satisfy any of the Rule 702 requirements. In fact, the Court noted that his conclusion -- that the phrase at issue is "particularly insidious" in a public school setting -- "comes out of nowhere." The expert described no methodology or research and gave no indication that he is familiar at all with the school the plaintiffs attended. His opinions are nothing more than mere conclusions. The district court was correct in concluding that this evidence was insufficient to survive summary judgment. Finally, the Court affirmed the $25 damage awards as justified by the record.