Sean Gschwind v. Linda Heiden , 692 F.3d 844 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1755
S EAN G SCHWIND,
Plaintiff-Appellant,
v.
L INDA H EIDEN , et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 08 C 50035—Philip G. Reinhard, Judge.
A RGUED A UGUST 7, 2012—D ECIDED A UGUST 31, 2012
Before P OSNER, T INDER, and H AMILTON, Circuit Judges.
P OSNER , Circuit Judge. The plaintiff taught sixth-grade
math at a public school in Harvard, Illinois, a small
town. He was forced to resign after he complained to
school administrators and the police about a threat to
him made by one of his students. He claims in this civil
rights suit against the school’s principal and assistant
principal and against the school district that his forced
resignation was in retaliation for his exercising his
2 No. 12-1755
First Amendment right of free speech. The district court
granted summary judgment for the defendants on
the ground that the plaintiff’s complaint about being
threatened was not protected by the First Amendment
because it did not involve a matter of public concern.
The basic facts are not in dispute. Before the student
threatened him, the plaintiff had met with the parents
about a threat the student had made to another student.
Later the plaintiff had seen the student beat up another
student in the hallway of the school, and again he met
with the student’s parents. The student’s father used
that occasion to threaten the plaintiff with a class-action
lawsuit and to tell him that the father’s older son, who
had assaulted the assistant principal, should have as-
saulted the plaintiff instead.
Several days later the plaintiff happened to call on the
student in class to perform the student’s “math
karaoke”—the plaintiff had given the students an assign-
ment to create a song the lyrics of which would relate to
something they’d learned in the class. The student’s song
added “I stabbed Gschwind” to the lyrics of the Gangsta
Rap song “Boyz in da hood,” www.youtube.com/watch?v=
fGeNDnYcQOA (visited Aug. 28, 2012). The plaintiff
was disturbed and stopped the class. The student was
12 or 13.
The plaintiff spoke to the school’s police liaison and
to the principal and the assistant principal (the latter,
remember, had been the victim of the assault by the stu-
dent’s brother). The plaintiff talked of filing a criminal
complaint, and later did. He acknowledges having
No. 12-1755 3
been afraid for his safety, but he explained in an
affidavit in this litigation that his fear “co-existed with
a desire to report the singing of the song as a crime
that had been committed, to help ensure the smooth
and safe operation of the school and everyone inside . . . .
The point of signing the disorderly conduct complaint
was to bring to the public light the fact that such an
incident had occurred.” He testified similarly in his
deposition: “as far as it [the complaint] being a matter
of public concern, it involved disorderly conduct that
occurred in the classroom. That disorderly conduct
had to do with public safety issues.”
The police liaison encouraged him to file the criminal
complaint, pointing out that Illinois law declares a
knowing threat of violence against a person at a school
to be a form of disorderly conduct, 720 ILCS 5/26-1(a)(13),
and telling him that “the city feels it’s important
that this student go in front of a judge and explain his
actions.” The principal and assistant principal were not
supportive, however, fearing that the parents would sue.
Nevertheless the plaintiff signed the complaint (this
was three weeks after the singing of “I stabbed Gschwind”
in his class) and the student was charged with dis-
orderly conduct; we have not been told the outcome.
The school initially suspended him for three days
but then reduced the suspension to two.
The day after the plaintiff signed the criminal com-
plaint, the assistant principal out of the blue gave him
an “unsatisfactory” evaluation; his previous evaluations
had all been “satisfactory” and he had not been warned
4 No. 12-1755
of problems that might result in a 180 degree change in his
evaluation. The ostensible basis of the new evaluation
was “lack of interpersonal skills in relating to students,
parents, and colleagues.” A jury could easily find that
the real reason was the threat of litigation by the
student’s belligerent father.
The defendants admitted in their answer to the plain-
tiff’s complaint that they had “informed Plaintiff that
they had both come to the conclusion that Plaintiff’s
employment with the School District should not con-
tinue beyond the end of the school year and that, if
Plaintiff did not resign his teaching position before the
next Board of Education meeting, Principal Heiden
would recommend to the Board of Education that Plain-
tiff’s teaching contract not be renewed for the fol-
lowing year.” Since, as we’ll see, the board’s policy was
to rubber stamp personnel decisions by the school
district’s superintendent, who in turn rubber stamped
personnel decisions by principals, it is apparent that the
plaintiff was being fired—as he put it in his complaint,
being “compelled to resign.” The defendants do not
deny that he was constructively discharged. See, e.g.,
Kodish v. Oakbrook Terrace Fire Protection District, 604
F.3d 490, 502 (7th Cir. 2010); Fischer v. Avanade, Inc.,
519 F.3d 393, 409 (7th Cir. 2008).
But they argue that even if they fired the plaintiff in
retaliation for his complaining to them about the
student and particularly for his filing the criminal com-
plaint, the complaining and the filing were purely
personal acts on his part and thus not the exercise of
No. 12-1755 5
his right of free speech. Houskins v. Sheahan, 549 F.3d
480, 490-92 (7th Cir. 2008). The district judge agreed,
saying that “the undisputed facts overwhelmingly dem-
onstrate that plaintiff signed the complaint purely
as a matter of private interest . . . as a perceived vic-
tim of a crime and out of concern for his own
personal safety.”
Violence in schools is a subject in which the public
these days is highly interested, with the added twist in
this case, which would amplify the public’s interest,
that the father of the student who made the threat
appears to have endorsed it. Nevertheless the plaintiff
in filing the criminal complaint might have had no
interest in making a public statement about school vio-
lence, but have only wanted to deter further threats
against himself. However, in saying that the undis-
puted facts “overwhelmingly demonstrate[d]” that the
latter was the correct interpretation of the plaintiff’s
reaction to “I stabbed Gschwind,” the district judge
overlooked the statement in the plaintiff’s affidavit that
he had filed the criminal complaint in part “to help
ensure the smooth and safe operation of the school
and everyone inside” and, more important to a free-
speech claim, “to bring to the public light the fact that
such an incident had occurred.” As pointed out in
Gazarkiewicz v. Town of Kingsford Heights, 359 F.3d 933,
942 (7th Cir. 2004), “speech of public importance is
only transformed into a matter of private concern when
it is motivated solely by the speaker’s personal inter-
ests” (emphasis in original).
6 No. 12-1755
The defendants state in their brief that the plaintiff’s
“contention that he signed the juvenile complaint for
disorderly conduct to bring to the public light the fact
that such an incident had occurred in his classroom
is belied by the fact that under the Illinois Juvenile
Court Act, both law enforcement records and court
records relating to juveniles are deemed to be con-
fidential and cannot be inspected, unless by order of
court or by strict exceptions set forth in the Juvenile
Court Act. Members of the public have no unfettered
right of access to juvenile court records” (record refer-
ence and citation omitted). It is true that the records
are sealed, 705 ILCS 405/1-7, -8, but that doesn’t
preclude the victim of a juvenile crime, or anyone else
for that matter (us judges for example), from talking
about the crime, whether privately or in public. Indeed,
we know from the Pentagon Papers case (New York Times
Co. v. United States, 403 U.S. 713 (1971)), and from
many cases since, that often the First Amendment is
held to protect a disclosure of state secrets that violates
state law—not to mention obnoxious invasions of
personal privacy, as in Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975), which involved a radio station’s
violation of a state law limiting public disclosure of
the names of rape victims. (See the discussion of that
and related cases in Haynes v. Alfred A. Knopf, Inc., 8
F.3d 1222, 1229-32 (7th Cir. 1993).) And certainly the
incident giving rise to the accusation—“I stabbed
Gschwind”—could not be silenced consistently with
the First Amendment. It has in fact been reported, see
David L. Hudson Jr., “Fired Math Teacher’s Retaliation
No. 12-1755 7
Claim Nixed” (First Amendment Center, Oct. 27, 2011),
www.firstamendmentcenter.org/fired-m ath-teachers-
retaliation-claim-nixed (visited Aug. 15, 2012), and of
course is being reported in this opinion. And finally
the juvenile criminal secrecy law is so riddled with ex-
ceptions—for police, prosecutors, judges, social workers,
and other officials, see 705 ILCS 405/1-7(A), -8(A)—that
there was actually a rather sizable public for the records
of the criminal proceeding without any reporting by
the media.
We are mindful—have indeed emphasized—that aca-
demic administrators are entitled, in the name of
academic freedom and efficient educational administra-
tion, to a considerable degree of judicial forbearance in
matters of discipline. See, e.g., Brandt v. Board of Ed-
ucation of City of Chicago, 480 F.3d 460, 467 (7th Cir.
2007). Realistically they can’t be indifferent to parental
pressure and to the threats and the actuality of suits
engendered by indignant (though biased and often over-
protective and downright unreasonable) parents. But
Illinois law has curtailed that discretion in respects
directly relevant to this case by requiring that any
incident of battery or intimidation (which includes
threats, see 720 ILCS 5/12-6(a)(1)) in a school be
reported immediately to law enforcement authorities.
105 ILCS 5/10-21.7, 5/34-84a.1. There has been no sug-
gestion that such regulations infringe academic freedom
protected by the First Amendment.
So summary judgment should not have been granted
on the ground that the plaintiff’s criminal complaint
8 No. 12-1755
was a matter of purely private concern. But we must
also consider the liability of the particular defendants
should the plaintiff succeed on remand in proving a
violation of his right of free speech.
The principles on which this suit is based are well
settled, which defeats the individual defendants’
claim of qualified immunity. The school district, how-
ever, cannot be held liable for the tortious conduct of
the principal and assistant principal under the doctrine
of respondeat superior. It can be held liable only for its
own conduct or that of its highest official or officials
charged with responsibility for making the kind of deci-
sion, in this case a termination of employment, that is
challenged. In Illinois the school board is the ultimate
policymaking body with regard to personnel decisions.
105 ILCS 5/10-20, 20.7. The school district’s superin-
tendent, although the highest official of the school district,
is not a member of the board and does not have the
ultimate responsibility for such decisions. 105 ILCS 5/10-
16.7, -21.4; Thornton Fractional High School District No. 215
v. Illinois Educational Labor Relations Board, 936 N.E.2d
1188, 1196 (Ill. App. 2010); Duda v. Board of Education of
Franklin Park Public School District No. 84, 133 F.3d
1054, 1061 (7th Cir. 1998).
The superintendent authorized the principal to fire
Gschwind, and the board approved that decision.
When Gschwind complained to the superintendent
about the decision of the principal and assistant
principal to force him to resign, the superintendent
replied that “it was the policy of the school district and
No. 12-1755 9
the Board of Education to allow principals and assistant
principals to make evaluation and employment deci-
sions as they see fit with respect to the teachers they
supervise and for the school district and the Board of
Education to follow these decisions and recommenda-
tions.” This was evidence of a policy of the school
district of condoning unconstitutional terminations,
since principals and assistant principals might “see fit”
to fire teachers on unconstitutional grounds. See
Cornfield by Lewis v. Consolidated High School District
No. 230, 991 F.2d 1316, 1325-26 (7th Cir. 1993); Mortimer
v. Baca, 594 F.3d 714, 716 (9th Cir. 2010).
After the holding in Wal-Mart Stores, Inc. v. Dukes, 131
S. Ct. 2541 (2011), that an employer’s policy of granting
its supervisors discretion to make personnel deci-
sions can’t be the subject of a class action against the
employer by employees complaining of discrimination
by the supervisors, it is easy to jump to the conclusion
that such a policy cannot be the basis of an individual
(as distinct from class action) suit against the employer,
either. Easy, but wrong. Wal-Mart distinguishes
between the lack of “commonality” among the class
members when multiple supervisors made the employ-
ment decisions of which the class is complaining—com-
monality being a prerequisite for a class action—and the
possibility “that ‘in appropriate cases,’ giving discretion
to lower-level supervisors can be the basis of Title VII
liability . . . since ‘an employer’s undisciplined system of
subjective decisionmaking [can have] precisely the
same effects as a system pervaded by impermissible
intentional discrimination,’ ” id. at 2554, quoting Watson
10 No. 12-1755
v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91 (1988).
Or as we put it in Bolden v. Walsh Construction Co., No. 12-
2205, 2012 WL 3194593, at *3 (7th Cir. Aug. 8, 2012),
“when multiple managers exercise independent discre-
tion, conditions at different stores (or sites) do not
present a common question.” For sure that is not this case.
The suit was terminated prematurely.
R EVERSED AND R EMANDED.
8-31-12