Gernetzke v. Kenosha Unified School District No. 1 , 274 F.3d 464 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2084
Sharon Gernetzke, individually, and
Doreen Bezotte, parent and legal
guardian of Joseph Bezotte,
Plaintiffs-Appellants,
v.
Kenosha Unified School District No. 1,
Michael Johnson in his official capacity
as Superintendent of Kenosha Unified
School District No. 1, and Chester Pulaski in
his official capacity as Principal of
George N. Tremper Senior High School,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 C 201--Charles N. Clevert, Judge.
Argued October 29, 2001--Decided December 14, 2001
Before Flaum, Chief Judge, and Posner and
Diane P. Wood, Circuit Judges.
Posner, Circuit Judge. Two high-school
students sued a Wisconsin public school
district and two of its administrators,
the superintendent of the district and
the principal of the plaintiffs’ school
(which is located in the City of
Kenosha), charging violations of their
constitutional and statutory rights to
religious freedom. They sought both
damages and injunctive relief. The
individual defendants were sued only in
their official capacities, so naming them
as defendants added nothing to the suit.
The plaintiffs appeal from the grant of
summary judgment to the defendants.
The plaintiffs belonged to the Bible
Club at their school. In response to the
school’s invitation to all student groups
to paint murals in the main hallway of
the school, the Club submitted a sketch
for a mural 4 feet by 5 feet depicting a
heart, two doves, an open Bible with a
well-known passage from the New Testament
(John 3:16: "For God so loved the world,
that he gave his only begotten Son, that
whosoever believeth in him should not
perish, but have everlasting life"), and
a large cross. The principal approved all
but the cross. He was afraid that the
inclusion of so salient a Christian
symbol would invite a lawsuit against the
school based on the establishment clause
of the First Amendment and might also
require him to approve murals of a
Satanic or neo-Nazi character, which
would cause an uproar. The school body
includes adherents of both these unlovely
creeds--and in fact the Bible Club’s
mural was defaced with a witchcraft
symbol, and a group of skinheads
unsuccessfully petitioned the principal
to allow them to paint a mural containing
a swastika. (According to a newspaper
article in the record, the school has
"active [white] supremacists enrolled
there" and there have been racial
incidents.) The principal had also
forbidden mention of a specific brand of
beer in the mural proposed by the
Students Against Drunk Driving.
The plaintiffs complain not only about
the excision of the cross from their
mural but also about the principal’s
refusal to allow one of them to
distribute unspecified religious
literature schoolwide. In support of the
first charge they cite the Equal Access
Act, 20 U.S.C. sec. 4071(a). The Act
forbids a school to deny equal access to
its premises to a student group merely on
the basis of the content (e.g.,
religious) of the speech at meetings of
the group. The school could therefore not
discriminate against the Bible Club
merely because it is a religious rather
than a secular association. Had the
school, therefore, while permitting the
Bible Club to meet on school premises,
forbidden it to announce its meetings or
otherwise compete on equal terms with
comparable but nonreligious student
groups, it would have violated the Act.
Board of Education v. Mergens, 496 U.S.
226, 247 (1990); Pope by Pope v. East
Brunswick Board of Education, 12 F.3d
1244, 1256 (3d Cir. 1993). But there is
no evidence of discrimination against the
Bible Club. The principal forbade the
inclusion of a large cross in the Club’s
mural because he was afraid that it might
invite a lawsuit (cf. Linnemeir v. Board
of Trustees, 260 F.3d 757, 759 (7th Cir.
2001)) and incite ugly conflicts among
the students. His reaction to the
swastika, and to the naming of a brand of
beer, in proposed secular murals shows
that he was discriminating not against
religion but merely against displays,
religious or secular, that he reasonably
believed likely to lead to litigation or
disorder. (The naming of a specific brand
of beer in the mural of a student
abstinence group might have encouraged
students to show their defiance by
getting drunk on it.)
The principal’s decision to forbid the
display of the cross was in any event
insulated from liability under the Act by
the provision that "nothing in [the Act]
shall be construed to limit the authority
of the school . . . to maintain order and
discipline on school premises." 20 U.S.C.
sec. 4071(f). It is true that to suppress
expression on the basis of the angry
reaction that it may generate is
precisely what the "heckler’s veto"
cases, most famously Terminiello v. City
of Chicago, 337 U.S. 1, 3-5 (1949),
forbid in the name of the free-speech
clause of the First Amendment. But the
"order and discipline" defense that we
just quoted suggests that the principle
of those cases has not been carried over
into the Equal Access Act. And anyway the
First Amendment has been sensibly
interpreted to allow school authorities
greater control over the free speech of
students than the state is permitted to
exercise over the free speech of adults
engaged in political expression in the
normal venues. "A school need not
tolerate student speech that is
inconsistent with its ’basic educational
mission’ . . . even though the government
could not censor similar speech outside
the school." Hazelwood School District v.
Kuhlmeier, 484 U.S. 260, 266 (1988); see
also Muller by Muller v. Jefferson
Lighthouse School, 98 F.3d 1530, 1536-37
(7th Cir. 1996); Baxter by Baxter v. Vigo
County School Corp., 26 F.3d 728, 737-38
(7th Cir. 1994). Order and discipline are
part of any high school’s basic
educational mission; without them, there
is no education.
The plaintiffs claim that the excision
of the cross and the refusal to permit
distribution of religious literature also
interfered with the free exercise of
their religion, in violation of the
religion clauses of the First Amendment
as interpreted in such cases as Good News
Club v. Milford Central School, 121 S.
Ct. 2093, 2100-02 (2001). We shall not
have to reach the merits of that claim,
which anyway seem dim, at least so far as
the excision of the cross is concerned
(the refusal to permit the plaintiffs to
distribute religious literature was
challenged only under the First
Amendment, and not under the Equal Access
Act as well); we shall not conceal our
doubts that the First Amendment has a
broader scope than the Equal Access Act,
Hsu By and Through Hsu v. Roslyn Union
Free School District No. 3, 85 F.3d 839,
870 and n. 30 (2d Cir. 1996), although
the Supreme Court has reserved the issue.
Board of Education v. Mergens, supra, 496
U.S. at 247; see also Ceniceros By and
Through Risser v. Board of Trustees, 106
F.3d 878, 881 n. 3 (9th Cir. 1997).
The procedural vehicle for the
constitutional claim is 42 U.S.C. sec.
1983, and an initial puzzle is why the
plaintiffs did not sue the individual
defendants in their individual
capacities, where they would not face the
Monell issue that we discuss below and
show is fatal to the claim regardless of
the claim’s merits. We did not obtain a
satisfactory response when we asked this
question of the plaintiffs’ lawyer at
oral argument.
We pause here to express our doubts
about the appropriateness of litigation
that is intended, whether by the friends
of religion or by its enemies, to wrest
the day-to-day control of our troubled
public schools from school administrators
and hand it over to judges and jurors who
lack both knowledge of and responsibility
for the operation of the public schools.
The plaintiffs’ high school is an urban
school with 2000 students and 42 student
groups. The regulatory and disciplinary
problems implied by these numbers are
formidable. In her diary, which is part
of the record, plaintiff Gernetzke wrote:
"[T]here’s something exciting[:] I’m
suing Kenosha Unified School District #1
. . . . The law suit is getting very
interesting. KUSD is getting themselves
deeper in cow dung than what they
realize!" Do we really need this?
Monell v. Department of Social Services,
436 U.S. 658, 690, 694 (1978), holds that
the doctrine of respondeat superior may
not be used to fasten liability on a
local government in a suit under section
1983. See also Cornfield by Lewis v. Con
solidated High School District No. 230,
991 F.2d 1316, 1324 (7th Cir. 1993). The
predominant though not unanimous view is
that Monell’s holding applies regardless
of the nature of the relief sought.
Compare, e.g., Greensboro Professional
Fire Fighters Ass’n, Local 3157 v. City
of Greensboro, 64 F.3d 962, 967 n. 6 (4th
Cir. 1995), and Church v. City of
Huntsville, 30 F.3d 1332, 1347 (11th Cir.
1994), with Chaloux v. Killeen, 886 F.2d
247, 250-51 (9th Cir. 1989); see also
Reynolds v. Giuliani, 118 F. Supp. 2d
352, 363 (S.D.N.Y. 2000). We need not
take sides in this case, since the
plaintiffs do not argue that Monell is
applicable only to their damages claim.
Respondeat superior is of course the
judge-made doctrine, applicable to most
tort cases but not to section 1983 cases,
that makes an employer liable even if
faultless for the torts its employees
commit in the course of their employment.
So the plaintiffs in this case cannot
prevail against the school district by
showing merely that the superintendent of
the district and the principal of their
school, acting within the scope of these
officials’ employment and therefore under
color of state law, deprived the
plaintiffs of religious liberty. They
must show that the district itself, which
is to say the officials or official
boards that constitute the relevant final
decisionmaking authority (legislative or
executive) within the district, was
directly responsible for the deprivation.
McMillian v. Monroe County, 520 U.S. 781,
784-85 (1997); Horwitz v. Board of
Education, 260 F.3d 602, 619 (7th Cir.
2001); Baskin v. City of Des Plaines, 138
F.3d 701, 705 (7th Cir. 1998).
This standard for municipal liability is
often referred to as liability for
"policy or custom," after language in
Monell v. Department of Social Services,
supra, 436 U.S. at 694. And also tracking
language in Monell courts often refer to
the municipality’s final decisionmaking
authority as its "final policymaking
authority." E.g., Baskin v. City of Des
Plaines, supra, 138 F.3d at 705. These
usages are potentially misleading. It
doesn’t matter what form the action of
the responsible authority that injures
the plaintiff takes. It might be an
ordinance, a regulation, an executive
policy, or an executive act (such as
firing the plaintiff). The question is
whether the promulgator, or the actor, as
the case may be--in other words, the
decisionmaker--was at the apex of
authority for the action in question.
See, e.g., Eversole v. Steele, 59 F.3d
710, 716 (7th Cir. 1995). An executive
official who rather than making policy
merely implements legislative policy acts
merely as a delegate of the legislature,
and his act is therefore not the act of
the municipality itself for purposes of
liability under section 1983. Auriemma v.
Rice, 957 F.2d 397 (7th Cir. 1992).
The bearing of delegation on the
principle of Monell turns out to be
critical in this case. The final
decisionmaking authority of the school
district is lodged in the district’s
school board, but the board has
promulgated regulations that delegate the
administration of the five high schools
in the school district to the principal
of each school. This delegation, the
plaintiffs argue, makes the principal the
final decisionmaker so far as the mural
and the request to be allowed to
distribute literature are concerned. That
cannot be right. It would collapse direct
and derivative liability. Every public
employee, including the policeman on the
beat and the teacher in the public
school, exercises authority ultimately
delegated to him or her by their public
employer’s supreme governing organs. A
police officer has authority to arrest,
and that authority is "final" in the
practical sense that he doesn’t have to
consult anyone before making an arrest;
likewise a teacher does not have to
consult anyone before flunking a student.
That is a perfectly good use of the word
"final" in ordinary conversation but it
does not fit the cases; for if a police
department or a school district were
liable for employees’ actions that it
authorized but did not direct, we would
be back in the world of respondeat
superior. To avoid this the cases limit
municipal liability under section 1983 to
situations in which the official who
commits the alleged violation of the
plaintiff’s rights has authority that is
final in the special sense that there is
no higher authority. Partee v.
Metropolitan School District, 954 F.2d
454, 456 (7th Cir. 1992); Beattie v.
Madison County School District, 254 F.3d
595, 603 (5th Cir. 2001). School
superintendents, principals, and teachers
in Wisconsin do not have final authority
in this sense, Wis. Stat. sec.
120.13(b)(1); cf. Horwitz v. Board of
Education, supra, 260 F.3d at 619; Duda
v. Board of Education, 133 F.3d 1054,
1061 (7th Cir. 1998); Cornfield by Lewis
v. Consolidated High School District No.
230, supra, 991 F.2d at 1325-26, as they
would if theWisconsin legislature had
vested the authority to make all
decisions concerning school
administration in them rather than in the
school boards. Delegation is not
direction; authorization is not command;
permission does not constitute the
permittee the final policymaking
authority. City of St. Louis v.
Praprotnik, 485 U.S. 112, 126 (1988)
(plurality opinion); Brown v. Neumann,
188 F.3d 1289, 1290 (11th Cir. 1999) (per
curiam). Only the delegation ("conferral"
would be a better term) of final
authority makes the "delegate" the final
authority. City of St. Louis v.
Praprotnik, supra, 485 U.S. at 126-27;
Cornfield by Lewis v. Consolidated High
School District No. 230, supra, 991 F.2d
at 1325; Ware v. Unified School District
No. 492, 902 F.2d 815, 818-19 (10th Cir.
1990).
It is true that by adopting an
employee’s action as its own (what is
called "ratification"), a public employer
becomes the author of the action for
purposes of liability under section 1983.
Kujawski v. Board of Commissioners, 183
F.3d 734, 737 (7th Cir. 1999); Baskin v.
City of Des Plaines, supra, 138 F.3d at
705; Hyland v. Wonder, 117 F.3d 405, 416
(9th Cir. 1997). This is not a legal
fiction, at least in the bad sense of
that term, but merely recognition that
direction and approval do not differ
practically. The plaintiffs argue that
ratification occurred here when after
they brought this suit the school board
refused to direct the principal of their
school to alter his response to their
demand. The argument if accepted would
convert every public employee’s action
that a plaintiff wished to challenge into
the action of the employer. City of
Canton v. Harris, 489 U.S. 378, 391-92
(1989); Cygnar v. City of Chicago, 865
F.2d 827, 847 (7th Cir. 1989); Soderbeck
v. Burnett County, 752 F.2d 285, 293 (7th
Cir. 1985); Crowley v. Prince George’s
County, 890 F.2d 683, 687 (4th Cir.
1989); see also Smith v. Chicago School
Reform Board of Trustees, 165 F.3d 1142,
1149 (7th Cir. 1999); Jones v. City of
Chicago, 787 F.2d 200, 204-05 (7th Cir.
1986). From the plaintiff’s standpoint it
would be a case of "heads I win, tails
you lose." The plaintiff would ask the
employer for relief and if the employer
granted it would not have to sue, while
the employer who refused to grant the
relief requested would be punished by
being deemed to consent to the
application of the doctrine of respondeat
superior. Deliberate inaction might be
convincing evidence of delegation of
final decisionmaking authority, or of
ratification, cf. Jones v. City of
Chicago, supra, 787 F.2d at 204-05, but
there is no evidence of that here.
Affirmed.