Galdikas, James v. Fagan, Stuart I. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2210
JAMES GALDIKAS, CATHERINE HANSEN,
CAROL D. HEDGSPETH, et al.,
Plaintiffs-Appellants,
v.
STUART I. FAGAN, PAULA WOLFF,
HARRY KLEIN, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 4268—Suzanne B. Conlon, Judge.
____________
ARGUED OCTOBER 31, 2002—DECIDED AUGUST 15, 2003
____________
Before RIPPLE, MANION and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. The plaintiffs, a group of former
graduate students in the Master of Social Work (“MSW”)
program at Governor’s State University (“GSU”), brought
this action pursuant to 42 U.S.C. § 1983 against various
GSU officers and members of the GSU Board of Trustees
(collectively, “the defendants”) in their individual capaci-
ties. They alleged violations of substantive and procedural
due process, as well as conspiracy to prevent the exercise
of their First Amendment rights. Finally, they alleged re-
taliation for the exercise of their First Amendment rights.
2 No. 02-2210
The plaintiffs also asserted claims under Illinois law for
promissory estoppel and fraud. The district court dis-
missed the plaintiffs’ substantive and procedural due
process claims with prejudice and granted summary judg-
ment in favor of the defendants on the plaintiffs’ First
Amendment conspiracy and retaliation claims. The district
court also dismissed the plaintiffs’ state law claims, but
without prejudice. For the reasons set forth in the follow-
ing opinion, we affirm the judgment of the district court.
I
BACKGROUND
GSU is a public university located in University Park,
Illinois. The plaintiffs are former graduate students of the
MSW program at GSU. The defendants are various GSU
officers and members of the GSU Board of Trustees. The
plaintiffs allege that the defendants induced them to
matriculate in the MSW program at GSU by knowingly and
falsely representing to them that the program was ap-
proved for accreditation by the National Council of Social
1
Work Education (“NCSWE”). According to the complaint,
the MSW program was never approved for accreditation
by NCSWE, and the defendants took no steps to ensure
that the program would gain accreditation. The defendants
hired unqualified faculty members and maintained an
inadequate curriculum, knowing that such decisions would
prevent the MSW program from gaining accreditation.
1
Graduates of unaccredited social work programs are not
eligible to become licensed social workers in Illinois. However,
in August 2001, the Illinois Legislature suspended for several
years the requirement that applicants for a social work li-
cense graduate from an accredited program.
No. 02-2210 3
Between 1997, when the program was instituted, and 2000,
the MSW program was denied accreditation on at least two
occasions. In November of 2000, GSU representatives
informed the students enrolled in the MSW program that
NCSWE had denied accreditation candidacy and that the
students would be graduating from an unaccredited pro-
gram. Shortly thereafter, GSU suspended MSW classes.
On December 5, 2000, MSW students, including the
plaintiffs, met with GSU President Stuart Fagan to dis-
cuss the MSW accreditation issue. Shortly thereafter,
President Fagan and GSU Vice President Timothy Arr
met and agreed to allow MSW students to attend a board
meeting scheduled for December 15, 2000, so that the
plaintiffs could voice their complaints. Several MSW
students attended the December 15 meeting, and they were
permitted to protest with picket signs. Later that evening,
several MSW students attended a GSU holiday party,
which also was attended by the defendants; some stu-
dents carried signs and others passed out leaflets protest-
ing the defendants’ handling of the MSW accreditation
issue.
On January 12, 2001, the defendants held an executive
board meeting to discuss the MSW program. During this
meeting, the defendants’ attorney summarized his re-
search on the MSW accreditation issue, including the
possibility of litigation and settlement options.
On January 27, 2001, GSU hosted a series of alumni
events, which entailed an alumni town meeting, followed
by individual networking receptions for each of GSU’s
academic departments, and an alumni dinner. The pur-
pose of the alumni town meeting was to discuss GSU’s
strategic planning process with alumni, while the purpose
of the alumni networking receptions and dinner was to
facilitate alumni networking. Featured speakers at the
4 No. 02-2210
dinner included President Fagan and State Senator Debbie
Halvorson.
The GSU Alumni Association created the invitation list
for the January 27 events by identifying all GSU graduates
as of August 2000, and eliminating any whose addresses
were not in zip codes within driving distance. Invitations
were mailed in December of 2000, and invitees were
asked to return a response card by January 15, indicating
which of the events they planned to attend. Although GSU
officials initially expected around 250 alumni and guests
to attend the events, more than 900 confirmed their atten-
dance.
In preparation for the January 27 events, GSU Director
of Public Safety Albert Chesser composed two memos ad-
dressed to President Fagan regarding security. In the first
memo, dated January 18, 2001, Chesser stated that “[c]am-
pus access will be open and we expect a positive impact
in handling the potential protestors and/or disturbances.”
R.54, Ex.17. In a second memo, dated January 25, 2001,
Chesser noted a change in plans. In addition to closing two
of the six university entrances and monitoring the remain-
ing four, the memo states that security “will only allow
picket signs outside in the vestibule area, but not to stop
any flow of guest attendance.” R.54, Ex.18. Although both
memos were addressed to President Fagan, he denies
receiving them, and Chesser recalls sending them to his
immediate supervisor, Vice President Arr, rather than to
President Fagan.
On the day of the events, the plaintiffs gathered outside
of GSU’s main entrance in order to protest the defen-
dants’ handling of the MSW accreditation issue and to meet
with State Senator Halvorson. Some of the plaintiffs car-
ried picket signs. Security officers informed the plaintiffs
that they could picket on the walkway outside of the
No. 02-2210 5
building, but that they could not bring their picket signs
into the building. The plaintiffs were allowed to enter the
atrium (without their picket signs) and to converse with
registered guests, but they were denied access to other
areas of the building, including the library and restrooms.
As a result of the restrictions, the plaintiffs claim that they
were prevented from attending a previously scheduled
meeting with Senator Halvorson.
With the exception of Bruce Friefeld, who arrived after
the plaintiffs had disbanded, no member of the Board of
Trustees attended the January 27 alumni events. President
Fagan, however, was in attendance; at some point during
the events, Chesser informed President Fagan of the pro-
test. President Fagan testified that he told Chesser that
“the students should be allowed to protest and in no
situation whatsoever should there be any physical alterca-
tion at all.” R.45, Ex.G at 75.
II
DISCUSSION
A. Substantive Due Process
The plaintiffs submit that the district court erred when
it granted the defendants’ motion to dismiss their substan-
tive due process claim. The plaintiffs submit that the
defendants deprived them of a fundamental right to a
continuing education. We review a district court’s grant
of a motion to dismiss de novo. See Hickey v. O’Bannon, 287
F.3d 656, 657 (7th Cir. 2002). In doing so, this court must
accept all well-pleaded facts alleged in the complaint as
true and must draw all reasonable inferences in favor of
the plaintiffs. See Lachmund v. ADM Investor Servs., Inc.,
191 F.3d 777, 782 (7th Cir. 1999). Dismissal is proper if it
6 No. 02-2210
appears beyond doubt that the plaintiffs cannot prove any
set of facts entitling them to relief. See First Ins. Funding
Corp. v. Fed. Ins. Co., 284 F.3d 799, 804 (7th Cir. 2002).
In Washington v. Glucksberg, 521 U.S. 702 (1997), the
Supreme Court identified two controlling features of sub-
stantive due process:
First, we have regularly observed that the Due Process
Clause specially protects those fundamental rights and
liberties which are, objectively, deeply rooted in this
Nation’s history and tradition, and implicit in the
concept of ordered liberty, such that neither liberty
nor justice would exist if they were sacrificed. Second,
we have required in substantive-due-process cases a
careful description of the asserted fundamental liberty
interest. Our Nation’s history, legal traditions, and
practices thus provide the crucial guideposts for re-
sponsible decision-making that direct and restrain our
exposition of the Due Process Clause.
Id. at 720-21 (internal quotation marks and citations omit-
2
ted). In keeping with the analytical pattern mandated by
Glucksberg, we first must identify carefully the interest
that the plaintiffs claim to be constitutionally protected.
Then we must determine whether our “Nation’s history,
legal traditions and practices” permit our characterizing
that interest as fundamental. In this process, we must
2
Applying this standard, the Supreme Court held that the
asserted right to assistance in committing suicide is not a fun-
damental liberty interest protected by the Due Process Clause
and, therefore, the state’s ban on assisted suicide was con-
stitutional because it was rationally related to a legitimate
government interest. See Washington v. Glucksberg, 521 U.S. 702,
728 (1997).
No. 02-2210 7
adhere to existing precedent of the Supreme Court and of
this court.
As the district court noted, the right asserted by the
plaintiffs is best described as the right to an accredited
graduate school education. Neither the Supreme Court
nor this court has recognized education as a fundamental
right. The opportunity to receive a post-secondary ed-
ucation from an accredited graduate school program cer-
tainly has not received such recognition. Indeed, in San
Antonio Independent School District v. Rodriguez, 411 U.S. 1(1973), the Supreme Court expressly declined the invita-
tion to hold that education is a fundamental right under
the Due Process Clause. The Court took the view that
education is “not among the rights afforded explicit pro-
tection” under the Constitution and that it could not “find
any basis for saying it is implicitly so protected.” Id. at 34.
Relying on Rodriguez, this court recently stated in Dunn
v. Fairfield Community High School District No. 225, 158 F.3d
962, 966 (7th Cir. 1998), that, “[a]lthough students may have
some substantive due process rights while they are in
school, education itself is not a fundamental right.” (internal
citations omitted).
The Supreme Court has not overruled Rodriguez. It is
the governing precedent. Nevertheless, the plaintiffs at-
tempt to avoid the clear import of Rodriguez by contending
that the Supreme Court presumed the existence of a con-
stitutionally protected right in a university student’s con-
tinued enrollment in a public institution in Regents of
the University of Michigan v. Ewing, 474 U.S. 214 (1985), and
in Board of Curators of the University of Missouri v. Horowitz,
435 U.S. 78 (1978). The plaintiffs’ reliance on these cases
is misplaced. The Court in Ewing and Horwitz merely
“assumed, without deciding, that federal courts can review
an academic decision of a public educational institution
under a substantive due process standard.” Ewing, 474
8 No. 02-2210
U.S. at 222; see also Horowitz, 435 U.S. at 91-92. In neither
case did the Court affirmatively recognize a substantive
due process right in a student’s continued enrollment in
a public institution. Indeed, in both Ewing and Horowitz,
the Court expressly stated that it would not reach the
issue of whether the plaintiff’s assumed property interest
gave rise to a substantive right under the Due Process
Clause because the plaintiff’s claim failed even if the
Court were to assume such a right. See Ewing, 474 U.S. at
223 (holding that, even if a student’s assumed property
interest in a six-year program of study culminating in
an undergraduate degree and a medical degree “gave
rise to a substantive right under the Due Process Clause
to continued enrollment free from arbitrary state action,
the facts of record disclose no such action”); Horowitz, 435
U.S. at 91-92 (holding that, even if courts can review an
academic decision of a public educational institution
under substantive due process, the plaintiff’s claim would
fail because the defendants’ conduct was not arbitrary
and capricious); see also Akins v. Bd. of Governors of State
Colls. & Univs., 840 F.2d 1371, 1375 (7th Cir. 1988) (noting
that neither the Supreme Court nor the Seventh Circuit
has recognized that a student at a state-supported univer-
sity has a substantive due process right to continued
enrollment), vacated on other grounds by Bd. of Governors of
State Colls. & Univs. v. Akins, 488 U.S. 920 (1988).
The plaintiffs’ submission fares no better when it is
characterized as a display of arbitrary government ac-
tion that deprived the plaintiffs of their asserted interest
in obtaining a degree from an accredited post-secondary
institution. In their view, the alleged action of the defen-
dants shocks the conscience and therefore constitutes
the sort of egregious executive action that the substantive
component of the Due Process Clause is designed to
prevent.
No. 02-2210 9
In County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998),
the Supreme Court, in elaborating on the particular sub-
stantive due process concerns that ought to be addressed
by a court in assessing executive action, noted that the
cornerstone of due process is protection against govern-
ment power arbitrarily and oppressively exercised. The
Court emphasized that “only the most egregious official
conduct can be said to be arbitrary in the constitutional
sense.” Id. at 846 (internal quotation marks omitted). The
Court then defined such constitutionally cognizable conduct
3
as that which “shocks the conscience.” Id. Elaborating
3
As noted by many courts and commentators, the majority
opinion in Lewis leaves a number of questions unresolved. The
principal ambiguity is whether the “shocks the conscience”
standard replaces the fundamental rights analysis set forth in
Glucksberg whenever executive conduct is challenged or whether
the “shocks the conscience” standard supplements or informs
the Glucksberg paradigm in such situations. Certain language in
the majority opinion in Lewis suggests that the “shocks the
conscience” standard should be applied as an antecedent or
threshold inquiry in all cases of executive conduct. See County
of Sacramento v. Lewis, 523 U.S. 833, 847-48 n.8 (1998). Other
passages suggest that the “shocks the conscience” inquiry may be
employed to inform the historical inquiry into the nature of
the asserted liberty interest. See id. Justice Kennedy, joined by
Justice O’Connor, also suggested that a “shocks the conscience”
inquiry is best understood as a beginning point in the court’s
search for whether the executive action in question can be said
to have found historical acceptance, or at least tolerance, among
traditional executive practices. See id. at 856-58 (Kennedy, J.,
concurring); see also Hawkins v. Freeman, 195 F.3d 732, 738-39
n.1 (4th Cir. 1999) (en banc).
This ambiguity has been noted as well in our own earlier
cases. For example, in Khan v. Gallitano, 180 F.3d 829, 836 (7th Cir.
(continued...)
10 No. 02-2210
3
(...continued)
1999), this court applied the Glucksberg fundamental rights
analysis to executive conduct, concluding that the specialized
“shocks the conscience” analysis applies only in limited cir-
cumstances such as high-speed chases or pre-trial detentions.
However, the panel then went on to state that it would reach the
same conclusion—that the plaintiff’s claim fails—whether it
asked if the defendants’ conduct shocks the conscience or if the
defendants violated a fundamental right deeply rooted in history
and tradition. See id. By contrast, in Armstrong v. Squadrito, 152
F.3d 564, 570 (7th Cir. 1998), this court read Lewis to require a
three-part analysis: (1) whether the plaintiff’s asserted interest
is protected by the Due Process Clause; (2) whether the de-
fendant’s conduct offends the standards of substantive due
process; and (3) whether the totality of the circumstances shocks
the conscience. According to the court in Armstrong, “executive
conduct does not violate substantive due process—it does not
shock the conscience—unless it meets all three of the conditions.”
Id. at 571. In Dunn v. Fairfield Community High School District No.
225, 158 F.3d 962, 965-66 (7th Cir. 1998), the panel appeared
to view Lewis and Glucksberg as adopting more independent
tests for challenges to executive and legislative action.
Our case law on this point seems to reflect a more generally
perceived confusion as to the interrelationship of Lewis and
Glucksberg. See Matthew D. Umhofer, “Confusing Pursuits:
Sacramento v. Lewis and the Future of Substantive Due Pro-
cess in the Executive Setting,” 41 Santa Clara L. Rev. 437 (2001);
Robert Chesney, “Old Wine or New? The-Schocks-the-Con-
science Standard and the Distinction Between Legislative and
Executive Action,” 50 Syracuse L. Rev. 981 (2000); “The Supreme
Court 1997 Term Leading Cases,” 112 Harv. L. Rev. 122, 192-202
(1998).
Resolution of this ambiguity is not necessary to our decision
today. For the reasons set forth in the text, the plaintiffs’ substan-
tive due process claim fails under any reading of Lewis. The
(continued...)
No. 02-2210 11
on this standard, the Court stated that “liability for negli-
gently inflicted harm is categorically beneath the thres-
hold of constitutional due process” and that “conduct
intended to injure in some way unjustifiable by any gov-
ernment interest is the sort of official action most likely to
rise to the conscience-shocking level.” Id. at 849.
We do not believe that the alleged executive action in
this case can fairly be characterized as “so egregious, so
outrageous, that it may fairly be said to shock the con-
temporary conscience.” Lewis, 523 U.S. at 848 n.8. The
plaintiffs allege that the defendants induced them to en-
roll in a Master of Social Work program by knowingly and
falsely representing to them that the program was ap-
proved for accreditation. The plaintiffs further allege that
the defendants failed to take the steps necessary to ensure
that the program would gain accreditation. According to
the plaintiffs, the defendants hired unqualified faculty
members and maintained an inadequate curriculum,
knowing that such decisions would prevent the MSW
program from gaining accreditation. Assuming that these
allegations are true, we certainly are sympathetic to the
plaintiffs’ situation; however, we do not believe that the
defendants’ alleged conduct is sufficiently egregious to
“shock the conscience,” as that term has been employed in
substantive due process analysis.
3
(...continued)
Supreme Court has not recognized a fundamental right to
education. It certainly has not recognized a fundamental right
to a post-secondary accredited degree program. Taking the
plaintiffs’ allegations that the defendants acted improperly by
misleading them about the accreditation status of the MSW
program as true, such conduct is not sufficiently egregious
to shock the conscience.
12 No. 02-2210
Finally, we note further that the plaintiffs’ due process
claim cannot succeed under the precedent of this circuit
because adequate state law remedies are available to them.
The plaintiffs’ asserted substantive due process interest
exists (if at all) only as a matter of state contract law. In
Contreras v. City of Chicago, 119 F.3d 1286, 1295 (7th Cir.
1997), we stated that, when a plaintiff’s substantive due
process claim is predicated on the deprivation of a state-
created property interest, the plaintiff must show (1) that
the state actor’s conduct was arbitrary and irrational, and
(2) that the state actor committed a separate constitu-
tional violation or that state law remedies are inadequate.
See also Centres, Inc. v. Town of Brookfield, 148 F.3d 699, 704
(7th Cir. 1998); Strasburger v. Bd. of Educ., Hardin County
Cmty. Unit Sch. Dist. No. 1, 143 F.3d 351, 357 (7th Cir.
1998); Doherty v. City of Chicago, 75 F.3d 318, 325-26 (7th Cir.
1996); Kauth v. Hartford Ins. Co. of Illinois, 852 F.2d 951,
958 (7th Cir. 1988). We reasoned that such a “disciplined
jurisprudence” was necessary in order to not “undermine
established Supreme Court precedent requiring plaintiffs
complaining of arbitrary deprivations of their property to
seek redress through state remedies.” Contreras, 119 F.3d
at 1295 (internal quotation marks omitted).
Assuming, arguendo, that the defendants acted arbitrar-
ily and irrationally, the plaintiffs’ substantive due pro-
cess claim still must fail because there is no independent
constitutional violation and state law provides an ade-
quate remedy. The plaintiffs are able to sue the defen-
dants in state court under various state causes of action,
including fraud and promissory estoppel. Accordingly, the
district court correctly granted the defendants’ motion
to dismiss this claim.
No. 02-2210 13
B. Procedural Due Process
The plaintiffs next submit that the district court erred
by dismissing their procedural due process claim. We
review the district court’s dismissal of this claim de novo.
See Hickey, 287 F.3d at 657.
A procedural due process claim requires two principal
inquiries: first, whether the plaintiff was deprived of a
protected property or liberty interest, and second, whether
the plaintiff was deprived of that interest without suffi-
cient procedural protections. See Doherty, 75 F.3d at 322.
In this case, the parties dispute whether the plaintiffs have
a protected property interest in an accredited graduate
degree; whether the defendants, as opposed to NCSWE,
deprived the plaintiffs of that interest; and whether the
deprivation occurred without due process of law.
For purposes of procedural due process, property is
“a legitimate claim of entitlement.” Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577 (1972). A claim of entitle-
ment is not created by federal law; instead it is “created
and . . . defined by existing rules or understandings that
stem from an independent source such as state law—rules
or understandings that secure certain benefits and that
support claims of entitlement to those benefits.” Id. Accord-
ingly, property interests “usually arise from rights created
by state statutes, state or municipal regulations or ordi-
nances, and contracts with public entities.” Ulichny v.
Merton Cmty. Sch. Dist., 249 F.3d 686, 700 (7th Cir. 2001); see
also Johnson v. City of Fort Wayne, 91 F.3d 922, 943 (7th Cir.
1996) (noting that a property interest may arise from an
express or implied contract, as well as a state statute or
regulation).
The plaintiffs assert that defendants deprived them of
a property interest in an expected degree from an ac-
14 No. 02-2210
credited state institution. Illinois courts have not identified
4
clearly a property right in post-secondary education. How-
ever, Illinois courts have found that the payment of tui-
tion to an educational institution ordinarily gives rise to
an implied contract that the school will award a degree
upon the student’s satisfaction of the degree require-
ments established by the school. See Johnson v. Lincoln
Christian Coll., 501 N.E.2d 1380, 1384 (Ill. App. Ct. 1986)
(holding that a student who allegedly completed all the
requirements for a diploma but had not been given a
diploma stated a cause of action for breach of an implied
contract); Wilson v. Illinois Benedictine Coll., 445 N.E.2d 901,
906 (Ill. App. Ct. 1983) (stating that a university and its
students have a contractual relationship and the terms of
the contract are set forth in the university’s catalogs).
Because a property interest may be derived from an im-
plied contract in some instances, see Perry v. Sindermann, 408
U.S. 593, 601-02 (1972), and the plaintiffs allege that the
defendants represented to them that they would graduate
with an accredited degree upon completion of the pro-
gram’s requirements, the plaintiffs arguably possessed a
property interest in an accredited degree.
Assuming that the plaintiffs had a protected property
interest in an accredited degree, the next inquiry is whether
4
See Lee v. Bd. of Trs. of W. Illinois Univ., No. 98-4038, 2000 WL
14419, at *3 (7th Cir. 2000) (“Without taking a position on
whether Illinois law could establish such a property interest, we
hold only that these plaintiffs have not met their burden of
showing that Illinois law confers a property interest in their
continued attendance at WIU.”); Alexander v. Kennedy-King Coll.,
No. 88 C 2117, 1990 WL 179691, at *4 (N.D. Ill. Nov. 2, 1990)
(“It is not clear whether, in Illinois, a property interest exists in
a degree expected from a public institution of higher educa-
tion.”).
No. 02-2210 15
the plaintiffs’ complaint sufficiently alleges that the defen-
dants deprived the plaintiffs of that protected interest. The
district court held that the defendants did not work such
a deprivation because NCSWE was responsible for mak-
ing the decision not to grant accreditation. On appeal, the
defendants urge this court to affirm the district court’s
finding, stating that NCSWE’s “autonomous accredita-
tion decision, and its impact on the social work program
and its graduates, cannot support a claim for procedural
due process against the GSU defendants.” Appellees’ Br.
at 22. The plaintiffs, on the other hand, argue that the
district court and the defendants misconstrue their allega-
tions; although NCSWE was responsible for approving the
accreditation process, the defendants were responsible for
ensuring that its programs and faculty were sufficient to
qualify for accreditation.
We believe that the plaintiffs’ complaint states a suffi-
cient deprivation caused by the defendants. Taking the
allegations in the complaint as true, as we must, the de-
fendants induced the plaintiffs to enroll in the MSW pro-
gram by knowingly and falsely representing to the plain-
tiffs that the program was or would be approved for
accreditation and then took no affirmative steps to ensure
that the program would qualify for accreditation.
Because the defendants’ alleged conduct was “random
and unauthorized,” we must focus on whether meaning-
ful post-deprivation remedies exist under state law. See
Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n unautho-
rized intentional deprivation of property by a state em-
ployee does not constitute a violation of the procedural
requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the
loss is available.”). The answer to this question is yes. The
plaintiffs are free to seek a wide variety of relief in state
16 No. 02-2210
court under numerous legal theories, including common
law fraud and promissory estoppel. There is no reason
to believe that these potential causes of action do not af-
ford the plaintiffs a meaningful post-deprivation remedy.
Although the plaintiffs’ complaint alleges that they “had
no available state remedies to address the defendants’
refusal to provide them with the expected degrees for
which they matriculated,” this court routinely has held
that “such a conclusory allegation is insufficient” to state
a procedural due process claim, especially as in this
case, when the plaintiffs have “failed to explain why
[they] cannot pursue [their] claim in the Illinois state
5
courts.” Doherty, 75 F.3d at 324.
C. First Amendment Claims
The plaintiffs next submit that the defendants con-
spired to prevent the plaintiffs from exercising their First
Amendment right to protest the defendants’ handling of
the accreditation process during the January 27 alumni
events and that the defendants retaliated against the
plaintiffs on that date for previously exercising their right
to speak out in opposition to GSU and its administration.
The plaintiffs contend that the defendants retaliated
against them by preventing them from picketing inside the
building and by denying them access to various parts of
the building, including the library and restrooms. Follow-
ing discovery, the district court granted summary judg-
ment in favor of the defendants on the ground that the
plaintiffs had failed to offer sufficient evidence that the
5
Indeed, we note that the plaintiffs filed a separate lawsuit
in Illinois state court following the district court’s dismissal of
their due process and state law claims.
No. 02-2210 17
defendants personally were involved in the decision to
restrict the plaintiffs to the atrium without picket signs
during the alumni events. We review a district court’s
grant of summary judgment de novo, construing all facts
in favor of the nonmoving party. See Dersch Energies, Inc.
v. Shell Oil Co., 314 F.3d 846, 854 (7th Cir. 2002). Sum-
mary judgment is proper if there is no genuine issue of
material fact in dispute and the moving party is entitled
to judgment as a matter of law. See Wainscott v. Henry, 315
F.3d 844, 848 (7th Cir. 2003).
“Section 1983 creates a cause of action based upon per-
sonal liability and predicated upon fault. An individual
cannot be held liable in a § 1983 action unless he caused
or participated in [the] alleged constitutional deprivation.”
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983);
see also Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th Cir.
1996). Section 1983 “does not allow actions against indi-
viduals merely for their supervisory role of others.”
Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000).
Instead, “[a] causal connection, or an affirmative link,
between the misconduct complained of and the official
sued is necessary.” Wolf-Lillie, 699 F.2d at 869.
In this case, the plaintiffs contend that a genuine issue
of material fact exists as to whether President Fagan and
the individual members of the Board of Trustees con-
spired to prevent the plaintiffs from exercising their First
Amendment rights during the January 27 alumni events.
The evidence relating to the trustees is particularly weak.
With the exception of Bruce Friefeld, none of the trust-
ees attended the alumni events, and Friefeld did not
arrive until after the plaintiffs had left and the alleged
First Amendment violation had taken place. Essentially,
the plaintiffs contend that the trustees’ participation in the
alleged constitutional deprivation may be inferred from
18 No. 02-2210
their discussion of the accreditation issue during the Board
of Trustees’ executive meeting on January 12, 2001, and
the temporal proximity between that meeting and the
events that transpired on January 27. We cannot accept
this argument.
The minutes for the January 12 meeting reflect that the
defendants’ attorney was present and that he “sum-
marized the research he had done regarding the MSW
program accreditation issue and informed the Trustees
of possible litigation options the students might pursue.”
R.54, Ex.14. The minutes further reflect that “[p]ossible
settlement options and the budget implications were
discussed” and “[t]he draft of a press release regarding
the MSW situation was reviewed.” Id. The minutes do not
reflect that the January 27 alumni events, much less a
potential demonstration by the plaintiffs during the
events, were discussed. Additionally, each of the trustees
submitted to the district court an affidavit attesting that
he or she had no involvement in anything that transpired
in connection with the alumni events. Based on the evi-
dence submitted by the plaintiffs, a reasonable jury
could not infer that the trustees participated in a plan to
prevent the plaintiffs’ protest. Accordingly, the district
court correctly granted summary judgment in favor of the
trustees.
We now turn to the plaintiffs’ contention that President
Fagan conspired to impair their First Amendment rights
and to retaliate against them for having exercised pre-
6
viously their First Amendment rights.
6
In essence, the plaintiffs argue that President Fagan conspired
with the trustees in advance of the January 27 alumni events
to violate the plaintiffs’ First Amendment rights, but they also
(continued...)
No. 02-2210 19
In addition to his presence at the January 12 executive
board meeting, the plaintiffs allege that President Fagan
was the one who actually articulated the order to prevent
the plaintiffs from protesting during the January 27
alumni events. In support of this contention, the plain-
tiffs offer three pieces of evidence: (1) plaintiff Christy
Polaski’s testimony that two unidentified security guards
told her on January 27 that the building was closed pur-
suant to President Fagan’s instruction; (2) Timothy Arr’s
testimony that President Fagan had the authority to
make the decision that students would not be permit-
ted to enter the building with picket signs; and (3) two
security-related memos drafted by Albert Chesser and
addressed to President Fagan, which discuss security meas-
ures for the January 27 events and the possibility of a MSW
protest. We shall examine each of these submissions.
The plaintiffs cannot rely on Polaski’s testimony in
opposing the defendants’ motion for summary judgment
because it is inadmissible hearsay. See Eisenstadt v. Centel
Corp., 113 F.3d 738, 742 (7th Cir. 1997) (“[H]earsay is
inadmissible in summary judgment proceedings to the
same extent that it is inadmissible in a trial.”). Federal Rule
of Evidence 801(c) defines hearsay as “a statement, other
than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of
the matter asserted.” Fed. R. Civ. P. 801(c). Polaski’s testi-
mony is that two unidentified security guards told her
that the building was closed pursuant to President Fagan’s
instruction. The claimed probative value of Polaski’s
testimony depends entirely on the truth of the security
6
(...continued)
argue that President Fagan was the one who gave the order
during the alumni events to prevent them from protesting.
20 No. 02-2210
guards’ out-of-court statements, i.e., that President Fagan
actually gave the instruction to close the building. Accord-
ingly, Polaski’s testimony is hearsay and is inadmissible
unless an exception to the hearsay rule applies. See Fed. R.
Civ. P. 802; Young v. James Green Mgmt., Inc., 327 F.3d 616,
621 (7th Cir. 2003). Because the plaintiffs have not iden-
tified an applicable exception to the hearsay rule, we have
no occasion to consider the issue further.
The plaintiffs attach more significance to Vice President
Arr’s testimony than his actual words will allow. When
asked who possessed the authority to decide whether
students could enter the building with picket signs, Arr
testified: “President Fagan could make that decision. The
chief executive officer on the campus at any given time
could make that decision. I could make that decision.
Chief Chesser could make that decision.” R.54, Ex.16 at 43.
Arr did not testify that President Fagan alone had the
authority to decide that students could not bring picket
signs into the building, nor did Arr testify that President
Fagan ever made such a decision. Indeed, when asked
whether he knew if a decision had been made to prevent
students from entering the alumni events with picket
signs, Arr testified that he was unaware of any such de-
cision. See id. Accordingly, Arr’s testimony provides little
evidence of President Fagan’s involvement in the alleged
constitutional deprivation.
The two security-related memos provide, at most, evi-
dence that President Fagan approved the use of a reason-
7
able time, place, and manner restriction. Initially, we note
7
Although we assume, arguendo, that President Fagan re-
ceived the security-related memos, we express some skepticism
over whether a reasonable jury could make such a determina-
(continued...)
No. 02-2210 21
that the parties disagree over how we should classify the
forum in which the plaintiffs sought to protest. The plain-
tiffs, of course, argue that GSU qualified as a public forum
during the alumni events. The defendants, on the other
hand, argue that GSU modified the scope of any public
forum it may have designated in the past to create a
nonpublic forum during the scheduled events. The defen-
dants point out that the alumni events were controlled
events, “featuring invited speakers, invited guests, name
tags and formal dinners.” Appellees’ Br. at 37. We believe
that the defendants have provided a far more accurate
characterization of the record. Even if we assume the
existence of a public forum, however, we believe that the
record shows that President Fagan authorized nothing
more than a reasonable, content-neutral time, place, and
manner restriction.
Even in a public forum the government may impose
restrictions on “the time, place, and manner of expression
which are content-neutral, are narrowly tailored to serve
a significant government interest, and leave open ample
alternative channels of communication.” Perry Educ. Ass’n
v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see
also Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989);
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
(1984). The first security-related memo, dated January 18,
2001, does not indicate the existence of any restrictions
on speech. The second memo, dated January 25, 2001,
provides only that protestors would not be allowed to
7
(...continued)
tion. Both memos were addressed to President Fagan; how-
ever, President Fagan testified that he did not recall receiving
the memos and Chesser attested that he actually provided them
to Vice President Arr rather than to President Fagan.
22 No. 02-2210
bring picket signs inside the building. This restriction was
content-neutral, served the significant government inter-
est of crowd control at a scheduled event with 900 reg-
istered guests, and left open ample alternative channels
of communication, including picketing on the campus
walkway outside of the building and speaking to guests
inside the building without picket signs. Therefore, the
district court properly granted summary judgment in
favor of President Fagan on the First Amendment conspir-
acy claim.
The plaintiffs’ final contention is that a genuine issue
of material fact exists as to whether President Fagan re-
taliated against them on January 27, 2001, for previously
exercising their First Amendment rights on December 15,
8
2000.
In rejecting the plaintiffs’ First Amendment conspiracy
claim, we determined that, at most, the evidence sup-
ports the conclusion that President Fagan authorized the
use of a reasonable time, place, and manner restriction in
conjunction with the January 27 alumni events. However,
it is well established that an otherwise lawful action
“taken in retaliation for the exercise of a constitutionally
protected right violates the Constitution.” DeWalt v. Carter,
224 F.3d 607, 618 (7th Cir. 2000); see also Zimmerman,
226 F.3d at 573 (“[O]therwise permissible conduct can
become impermissible when done for retaliatory reasons.”).
Therefore, we must determine whether there is sufficient
evidence in the record from which a reasonable jury could
8
The plaintiffs also assert a retaliation claim against the trust-
ees. However, this claim, like the other First Amendment claim,
fails against the trustees because there is no evidence that
they played a role in formulating the security arrangements
for the January 27 alumni events.
No. 02-2210 23
find that President Fagan retaliated against the plaintiffs
for previously exercising their First Amendment rights.
“In order to establish a prima facie case of First Amend-
ment retaliation, a plaintiff must demonstrate that (1) his
conduct was constitutionally protected; and (2) his con-
duct was a substantial factor or motivating factor in the
defendant’s challenged actions.” Abrams v. Walker, 307 F.3d
650, 654 (7th Cir. 2002) (internal quotation marks omitted).
As to the second requirement, a plaintiff cannot prevail,
“even if a defendant was brimming over with unconstitu-
tional wrath against a § 1983 plaintiff” unless the plaintiff
“establishes that the challenged action would not have
occurred but for the constitutionally protected conduct.”
Id. (internal quotation marks omitted). If the plaintiff meets
this burden, “the burden shifts to the defendant, who must
show by a preponderance of the evidence that he would
have taken the same actions even in the absence of the
protected conduct.” Id.
There is no question that the plaintiffs have satisfied
the first requirement of their prima facie case. On December
15, 2000, the plaintiffs attended a GSU board meeting
and Christmas party where they criticized the University’s
failure to provide an accredited MSW program. However,
the plaintiffs have not created a genuine issue of material
fact regarding the second requirement. To establish that
the plaintiffs’ protected speech was a “motivating factor”
in President Fagan’s challenged actions, the plaintiffs rely
primarily on chronology. The plaintiffs assert that they
spoke out on December 15, 2000, that defendant trustees
and President Fagan met in executive session and dis-
cussed the MSW accreditation issue on January 12, 2001,
and that the plaintiffs were prevented from protesting with
picket signs inside the building on January 27, 2001.
24 No. 02-2210
Although retaliation may be inferred from chronology
in some instances, see Brady v. Houston Ind. Sch. Dist., 113
F.3d 1419, 1424 (5th Cir. 1997); Johnson v. City of Fort Wayne,
91 F.3d 922, 939 (7th Cir. 1996), the facts in this case are
not sufficient to support such an inference. The evidence
shows that President Fagan invited the plaintiffs’ speech
on December 15, 2000, and that the plaintiffs’ protest was
peaceful and non-disruptive. These facts, along with the
fear of overcrowding on the night of the alumni events,
do not lead to an inference of retaliation. Accordingly, sum-
mary judgment was properly granted in favor of Presi-
dent Fagan on this claim as well.
D. State Law Claims
Because there are no federal claims remaining, we prop-
erly decline to reach the merits of the plaintiffs’ state law
claims. The district court correctly dismissed the plain-
tiffs’ claims for promissory estoppel and fraud without
9
prejudice.
9
Finally, we summarily affirm the district court’s decision to
dismiss, without prejudice, the plaintiffs’ First Amendment
claims against certain “unnamed, known security guards” for
failure to comply with the requirements of Federal Rule of
Civil Procedure 4(m) and the court’s subsequent denial of the
plaintiffs’ motion for leave to amend the complaint to add the
previously unnamed security guards. See Troxell v. Fedders of
N. America, Inc., 160 F.3d 381, 383 (7th Cir. 1998) (holding
that district court did not abuse its discretion in declining to
extend time for service of process under Rule 4(m)).
No. 02-2210 25
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-15-03