Mosely, Lillian L. v. Chicago Bd Educ

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-4074, 03-4120
LILLIAN L. MOSELY,
Plaintiff-Appellant,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 03-CV-4914, 03-CV-4915—Suzanne B. Conlon,
Matthew F. Kennelly, Judges.
____________
ARGUED APRIL 8, 2005—DECIDED JANUARY 4, 2006
____________
Before FLAUM, Chief Judge, and BAUER and WOOD, Circuit
Judges.
WOOD, Circuit Judge. For the better part of two years,
Lillian Mosely fought the efforts of the Chicago Public
Schools to place her son Melvin in a special education class.
She was not satisfied with the treatment Melvin
was receiving; moreover, as she saw matters, her efforts led
the Board of Education of the City of Chicago to retaliate
against her in a number of ways. Mosely eventually sued
under the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §§ 1400 et seq., complaining about
Melvin’s treatment and the procedures the schools had
used, and under 42 U.S.C. § 1983, asserting that her own
2 Nos. 03-4074, 03-4120
civil rights had been violated through the Board’s retalia-
tory acts. The respective district court judges to whom these
two cases were assigned each dismissed them: the IDEA
case on grounds of lack of exhaustion of administrative
remedies, and the retaliation case for failure to state a
claim on which relief could be granted. Mosely has ap-
pealed. With the able assistance of amicus curiae recruited
by this court to explore the issues Mosely presented pro se
in the district court, we have concluded that these dismiss-
als were premature. We therefore remand both cases to the
district court for further proceedings.
I
Given the procedural posture of the case, we present the
facts in the light most favorable to Mosely. Our review of
the legal issues presented is, of course, de novo.
In March 2000, Mosely learned that Melvin—at that time
a student at Samuel Gompers Elementary School, one of the
Chicago public schools—had been placed in a class of
children with “explosive personalities.” No one had notified
Mosely that Melvin was subject to such a placement,
despite the fact that the IDEA spells out a number of
procedures that must be followed before this kind of step is
taken. See 20 U.S.C. § 1414(a)(1)(A)-(B). In the course of
investigating Melvin’s placement at Gompers, Mosely
learned that her son had also been taught by special
education teachers in his kindergarten, first-grade, and
second-grade years at Jesse Owens Academy.
Mosely undertook to educate herself about the procedures
that the Chicago Public Schools were obliged to follow
before placing a child in a special education class (or
removing the child from such a class). She attended meet-
ings of the Board, she spoke with individuals in the school
administration, and she discovered and reviewed skills
survey tests that Melvin had taken at Jesse Owens. Be-
Nos. 03-4074, 03-4120 3
cause of these efforts, she believes, at the beginning of the
new school year in September 2000 school staff began to
harass Melvin. On September 25, 2000, he was written up
for exhibiting hostile actions. On September 28, one day
after Mosely attended a Board meeting where she inquired
about allocations of school funds, she received an interim
progress report indicating that Melvin was failing every
class except Spanish and gym. In October, a day after
Mosely asked for a copy of the school budget, Melvin was
“written up for a suspension hearing.” The same thing
happened a month later: on November 10, Mosely went to
the school to pick up a memorandum, and Melvin was
written up for another suspension hearing the same day.
Gompers administrators never offered to assist Melvin by
placing him in their program to decrease student suspen-
sions.
In January 2001, the school placed Melvin in a sixth-
grade classroom for gifted students. The teacher told him
that she “did not want to get involved [in] his mother’s mess
with the principal.” Troubles resumed in March. On March
13, police officers arrived at the classroom and pulled
Melvin out for questioning because a parent had filled out
a police report about a fight involving her son. The police
showed up notwithstanding the fact that the parent had
spoken with Mosely and had told her that the problem had
been solved, and the parent had decided not to file charges.
The school held a meeting with Mosely on March 14 to
discuss the matter; information emerging at that meeting
revealed that the other child had started the incident. A
school official refused to give Mosely a copy of the police
report.
Mosely attended another meeting at the school on April
10 with the principal of the school, Mrs. Grissett, several
school faculty members, two police officers, two parents,
Melvin and his father, and three young men who claimed to
have overheard Melvin threatening to slash the tires on two
4 Nos. 03-4074, 03-4120
cars. On that occasion, one teacher said that she had heard
a month earlier that Melvin was going to bring a gun to
school. Mrs. Grissett insisted that the teachers file charges
against Melvin. They complied and filled out police reports,
but they did not give copies of their reports to Mosely.
Instead, they gave her only the numbers of the reports and
told her to go to the police station to obtain her copies. At
the end of the meeting, Mosely took Melvin outside, and
Melvin burst into tears.
At the beginning of the next school year, in September
2001, Mosely decided to home-school Melvin. He has not
attended the Chicago Public Schools since October 2001.
The schools were slow in giving Mosely Melvin’s school
records. Mosely claims that as a result of the false ac-
cusations that had been made against him, Melvin was
denied a public school education and developed problems in
trusting adults. In an amended complaint, Mosely
added the allegation that Melvin was now “forced to be
enrolled in the GED program instead of having a normal
education like most kids.”
While all of this was going on with Melvin, Mosely
was taking—or trying to take—an active role in school
governance. In October 1999, Mrs. Grissett informed Mosely
that the school needed to have a parent serve as chairper-
son of a committee the school had for purposes of the
Improving America’s Schools Act (IASA), Act of Oct. 20,
1994, Pub. L. No. 103-382, § 1; see 20 U.S.C. § 6318. Mosely
was elected IASA chairperson for Gompers for the 1999-
2000 and 2000-2001 school years. It turned out, however,
that her position was nominal at best. She was expected to
sign off on the school’s budget and design plans, even
though she had no background information about them. She
suspected that her signature was forged on some docu-
ments, as she received awards and letters of appreciation
relating to projects she knew nothing about.
Nos. 03-4074, 03-4120 5
Matters took a turn for the worse at a meeting on April 5,
2000, where Mosely was passing out flyers at the request of
another person. While she was doing so, the resource
teacher signaled to the police to have Mosely removed from
the premises. Shortly thereafter, Mosely attended a meeting
at the school about the IASA committee, where she got the
impression that the faculty found her chairpersonship
amusing. The pattern of insufficient information continued
into 2001. When Mosely began asking pointed questions
about the budget, the harassment of Melvin escalated. On
June 6, Mosely was hospitalized for a nervous breakdown
that resulted from the stress she and Melvin were experi-
encing; shortly thereafter, she turned to the courts.
II
The IDEA case, No. 03-4074 in this court, was assigned to
District Judge Suzanne B. Conlon. In response to a motion
from the defendant Board of Education, the district court
dismissed the case without prejudice in an order docketed
on October 23, 2003. It explained that Mosely had “fail[ed]
to allege she exhausted IDEA’s administrative remedies.
This is a fatal defect, precluding this court’s jurisdiction.”
The retaliation case, No. 03-4120 in this court, was assigned
to District Judge Matthew F. Kennelly. In an order grant-
ing the Board’s motion to dismiss, he construed the com-
plaint before him as raising issues related only to retalia-
tion against Mosely personally, as opposed to actions taken
against Melvin. The acts of retaliation that involved Melvin
had occurred between October and November 2000, a time
period more than two years before Mosely filed suit in July
2003. If Mosely were trying to assert Melvin’s rights, the
court reasoned, she brought suit too late. Viewed as a case
about her own experiences, Mosely was complaining only
about the denial of information pertinent to her position as
IASA chairperson. This, in the court’s view, did not “amount
6 Nos. 03-4074, 03-4120
to sufficiently adverse action to form the basis for a law-
suit.”
III
Before reaching the merits of either appeal, there are two
preliminary questions we must address. The first, which
relates only to No. 03-4074, concerns the perennial problem
of our appellate jurisdiction over a dismissal without
prejudice; the second (to which Judge Kennelly alluded)
relates to Mosely’s ability to bring a pro se action on behalf
of her child.
In Hoskins v. Poelstra, 320 F.3d 761 (7th Cir. 2003), we
distinguished between dismissing a complaint without
prejudice, which normally is not a final disposition, and
dismissing a case without prejudice, which is more likely to
be final for purposes of 28 U.S.C. § 1291. Id. at 763. One
way that we can assure ourselves that the necessary
finality for appeal exists is by looking to see if any amend-
ment that the plaintiff reasonably could offer would resusci-
tate the case. If the answer is no, then the words “without
prejudice” do not have much meaning. Similarly, if a new
suit by the plaintiff would be barred by the statute of
limitations, it is safe to say that the previous disposition is
final for purposes of appeal. See Muzikowski v. Paramount
Pictures Corp., 322 F.3d 918, 923 (7th Cir. 2003).
Because the IDEA itself does not contain a limitations
period for appeals, we have held that we must borrow
the time period provided for the most analogous state claim.
See Powers v. Indiana Dept. of Educ., Div. of Special Educ.,
61 F.3d 552, 555 (7th Cir. 1995). In Illinois, we have turned
to the period set forth in the Illinois School Code, 105 ILCS
§ 5/14-8.02, which establishes a set of procedures imple-
menting the IDEA. See Dell v. Bd. of Educ., Township High
Sch. Dist. 113, 32 F.3d 1053, 1059-60 (7th Cir. 1994).
Among other rules for obtaining judicial review of adminis-
Nos. 03-4074, 03-4120 7
trative decisions, the Illinois Code provides a statute of
limitations of 120 days. 105 ILCS § 5/14-8.02(k). As Melvin
has not been in the Chicago Public Schools since October
2001, and Mosely’s involvement appears to have ended at
about the same time, we are satisfied that the dismissal of
No. 03-4074 without prejudice here is effectively a final and
appealable judgment.
The second issue concerns Mosely’s right to proceed pro se
with an IDEA action on behalf of her child. The short
answer, as Judge Kennelly recognized, is that she cannot,
unless she hires counsel. See Navin v. Park Ridge Sch. Dist.
64, 270 F.3d 1147 (7th Cir. 2001). Amicus curiae has
conceded that this circuit and others have such a rule. See
also Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 231
(3d Cir. 1998); Wenger v. Canastota Cent. Sch. Dist., 146
F.3d 123, 124-26 (2d Cir. 1998); Devine v. Indian River
County Sch. Bd., 121 F.3d 576, 582 (11th Cir. 1997).
Nevertheless, amicus continues, Mosely is entitled to
bring the IDEA action on her own behalf. To support
this proposition, they rely on the decision of the First
Circuit in Maroni v. Pemi-Baker Reg’l Sch. Dist., 346 F.3d
247, 250 (1st Cir. 2003), in which that court concluded
that parents are “parties aggrieved” within the meaning
of the IDEA, 20 U.S.C. § 1415(i)(2)(A), and may bring
suit to protect their own procedural and substantive rights.
We have no trouble concluding that a parent like Mosely
may assert her own procedural rights. The statute provides
both children and their parents with an elaborate set of
procedural safeguards that must be observed in the course
of providing the child a free, appropriate public education.
See 29 U.S.C. § 1400(d)(1)(A) (FAPE substantive right); 20
U.S.C. § 1415(a) (procedures). Most of our sister circuits
take the position that the IDEA thus confers different
rights on children and parents: both substantive and
procedural rights for the child, and procedural rights only
for the parents. See Collinsgru, 161 F.3d at 235; Wenger,
8 Nos. 03-4074, 03-4120
146 F.3d at 123; Devine, 121 F.3d at 576. This is not
because parents do not suffer injury-in-fact when their child
is deprived of a proper education under the IDEA; to the
contrary, the parents normally will be able to show direct
financial injury, causation, and redressability. The IDEA
specifically authorizes parents to request due process
hearings; it allows them to appeal adverse decisions to the
state educational agency; and it makes them the ones
responsible for exhausting administrative remedies, see
generally Schaffer ex rel. Schaffer v. Weast, 126 S.Ct. 528,
532 (2005) (describing the “core” of the IDEA as “the
cooperative process that it establishes between parents and
schools”). This is enough of a procedural interest to entitle
Mosely to sue on her own behalf for the alleged IDEA
violations that are the subject of No. 03-4074. It is beyond
dispute that Mosely is suing for her own injuries in
No. 03-4120. We may therefore proceed to the issues on
appeal in both cases.
IV
A. No. 03-4074: Exhaustion
As we noted earlier, the district court dismissed No. 03-
4074 on “jurisdictional” grounds because Mosely failed
adequately to allege that she exhausted the IDEA’s admin-
istrative remedies. The district court should not, however,
have ascribed such fundamental importance to a failure to
allege exhaustion. As the Supreme Court has recently
reminded us in Eberhart v. United States, 126 S.Ct. 403(2005), “[c]larity would be facilitated . . . if courts and
litigants used the label ‘jurisdictional’ not for
claim-processing rules, but only for prescriptions delin-
eating the classes of cases (subject-matter jurisdiction)
and the persons (personal jurisdiction) falling within a
court’s adjudicatory authority.” 126 S. Ct. at 405 (quoting
Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (internal
Nos. 03-4074, 03-4120 9
quotation marks omitted)). In the past, this court has
described the exhaustion requirement found in the IDEA as
a claims-processing rule, pointing out that “lack of exhaus-
tion usually is waivable, as lack of jurisdiction is not.”
Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d
989, 991 (7th Cir. 1996).
A number of consequences flow from this basic fact. First,
the district court should not have turned to FED. R. CIV. P.
12(b)(1) when it decided the motion to dismiss. A failure to
exhaust is normally considered to be an affirmative defense,
see, e.g., Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
2002), and we see no reason to treat it differently here.
That means that the earliest possible time to consider it
would normally be after the answer has been filed, if it is
possible to decide the issue through a Rule 12(c) motion for
judgment on the pleadings. Parties and courts occasionally
take short-cuts and present certain arguments through a
motion to dismiss for failure to state a claim upon which
relief can be granted under Rule 12(b)(6), if the allegations
of the complaint in the light most favorable to the plaintiff
show that there is no way that any amendment could
salvage the claim. Mosely’s case is not a candidate for that
treatment, however. She had no obligation to allege facts
negating an affirmative defense in her complaint, see
Tregenza v. Great Am. Communications Co., 12 F.3d 717,
718 (7th Cir. 1993) (citing Gomez v. Toledo, 446 U.S. 635,
640 (1980)). There is nothing on the face of her complaint
that compels a conclusion that she failed to exhaust. Her
case must therefore be remanded to the district court for
further proceedings.
B. No. 03-4120: Retaliation
The district court dismissed this lawsuit under Rule
12(b)(6) for failure to state a claim. We review that ac-
tion under the familiar deferential standard of Conley
10 Nos. 03-4074, 03-4120
v. Gibson, 355 U.S. 41 (1957), under which we take all facts
and inferences in the light most favorable to the plaintiff,
and we ask whether the complaint gives the defendant fair
notice of what the suit is about and the grounds on which it
rests. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
(2002). Mosely’s § 1983 claim requires her to allege that a
state actor deprived her of a federally-secured right. In
order ultimately to prevail on the theory that her First
Amendment rights were violated, Mosely will have to show
that her speech was constitutionally protected, that the
Board took an adverse action against her, and that its
action was motivated by her constitutionally protected
speech. See Smith v. Dunn, 368 F.3d 705, 708 (7th Cir.
2004).
The district court saw two flaws in Mosely’s action: first,
that the events about which she was complaining oc-
curred more than two years before she filed her suit and
were thus barred by the statute of limitations, and second,
that the “freeze-out” she endured did not amount to an
adverse action because she did not allege any “tangible
detrimental” injury. Looking at the latter point first, we
think that the district court was too strict. In the analogous
context of public employees who allege that their employers
retaliated against them based on assertions of First Amend-
ment rights, we have observed that a Ҥ 1983 case does not
require an adverse employment action within the meaning
of the antidiscrimination statutes, such as Title VII of the
Civil Rights Act of 1964.” Speigla v. Hull, 371 F.3d 928, 941
(7th Cir. 2004). Rather, “[a]ny deprivation under color of
law that is likely to deter the exercise of free speech . . . is
actionable.” Power v. Summers, 226 F.3d 815, 820 (7th Cir.
2000).
Although we have recognized that an employer’s actions
may not qualify as an adverse effect on an employee’s
ability to exercise her First Amendment rights where
such actions are isolated criticisms, see Lifton v. Bd. of
Nos. 03-4074, 03-4120 11
Educ. of City of Chicago, 416 F.3d 571, 576 n.3 (7th Cir.
2005), we have also noted that the alleged injury “need not
be great in order to be actionable.” Id. (quoting Bart v.
Telford, 677 F.2d 622, 625 (7th Cir. 1982)). We have allowed
a plaintiff to proceed with her § 1983 claim on the basis of
allegations of something less than a “tangible detriment,”
such as an outright discharge, see, e.g., Muller v. Conlisk,
429 F.2d 901, 903 (7th Cir. 1970) (mere threat of sanctions
may be sufficient to allege First Amendment injury), or
even a constructive discharge. See Pieczynski v. Duffy, 875
F.2d 1331, 1333 (7th Cir. 1989) (employer’s actions “need
not be so severe as to amount to construc-
tive discharge–that is, it need not force the employee to
quit.”). For example, in Bart v. Telford, we held that a
campaign of minor harassment was sufficient to deter
the exercise of free speech. 677 F.2d at 624; see also
DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187, 192 (7th Cir.
1995) (“a campaign of petty harassment” that includes
“minor forms of retaliation” and “false accusations” can
be actionable under the First Amendment.); Pieczynski, 875
F.2d at 1333 (“Harassment of a public employee . . . violates
the First Amendment unless the harassment is so trivial
that a person of ordinary firmness would not be deterred
from . . . expressing those beliefs.”).
In her complaint, Mosely alleges something more than
baseless reprimands by school employees. She contends that
she was not allowed to participate meaningfully in her role
as the IASA chairperson during the 1999-2000 and 2000-
2001 school years. She was deprived of all information
necessary for any competent evaluation of the school’s
budget proposals; worse yet, she was asked to rubber-stamp
them and to lend her name to something that might have
been problematic. In effect, she was prevented from serving
as chairperson. Apart from these actions, she alleged that
a teacher summoned the police to have her removed from
the school on one occasion when she was passing out flyers
12 Nos. 03-4074, 03-4120
inviting parents to attend an IASA meeting. This is an even
more direct allegation of action that was designed to chill
her free speech. We conclude that the adverse actions she
alleged were enough to survive dismissal under Rule
12(b)(6).
The fact that Mosely was a volunteer as opposed to a paid
city employee is of little consequence to our analysis. Unlike
a procedural due process claim, for which one would need to
decide whether Mosely had a “protected property interest”
in her position as IASA chairperson, a First Amendment
claim raises the question whether the defendants “unconsti-
tutionally retaliated against [her] on account of her pro-
tected speech.” McGill v. Bd. of Educ. of Pekin Elementary
Sch. Dist. No. 108, 602 F.2d 774, 780 (7th Cir. 1979). The
Supreme Court has made it clear, particularly in the
context of at-will employment and a number of non-employ-
ment related government benefits, that while a person has
no “right” to a valuable government benefit and the govern-
ment can withhold a benefit for any number of reasons “[i]t
may not deny a benefit to a person on a basis that infringes
. . . constitutionally protected interests—especially . . .
freedom of speech.” Perry v. Sinderman, 408 U.S. 593, 597
(1972) (holding that the lack of a contractual or tenure right
to renewal of employment did not preclude teacher’s First
Amendment claim); see also Rankin v. McPherson, 483 U.S.
378, 383-84 (1987) (finding that plaintiff, who was merely
a probationary employee subject to discharge for no reason
at all, could be entitled to reinstatement if she was dis-
charged for exercising her First Amendment rights); Mt.
Healthy City Sch. Dist. of Educ. v. Doyle, 429 U.S. 274, 283-
84 (1977) (although petitioner was an at-will employee and
was not entitled to a hearing prior to decision not to
rehire him, he could establish a claim to relief if the
decision not to rehire him was made by reason of his
exercise of First Amendment rights). In Brown v. Disciplin-
ary Committee of Edgerton Volunteer Fire Department, 97
Nos. 03-4074, 03-4120 13
F.3d 969 (7th Cir. 1996), we recognized that a volunteer
fireman whose direct compensation was nominal could
nonetheless sue for a deprivation of his First Amendment
rights. See id. at 973-74 (citing Hyland v. Wonder, 972 F.2d
1129 (9th Cir. 1992) (experience and status that
often accompany a volunteer position can make it a bene-
fit or privilege that could be taken away unconstitution-
ally)). Similarly, although Mosely may not have had a right
to her unpaid position, she cannot be muzzled or denied the
benefit of participating in public school governance because
she engaged in constitutionally protected activity.
Apart from the fact that the statute of limitations is
also an affirmative defense, there are other problems with
the district court’s conclusion that her retaliation action
was untimely. Even if the incidents relating to Melvin
occurred more than two years before she filed this case,
Mosely’s complaint recounted other instances of harassment
that took place within the two-year time limit. In response
to the court’s question, “through what period of time do you
contend that your son was being harassed,” Mosely re-
sponded “up until I took him out the school.” That date was
September 18, 2001. To the extent that her claim is based
on incidents that occurred between July 16, 2001, and
September 18, 2001, it is not time-barred, because she filed
her complaint on July 16, 2003.
We do not exclude the possibility that discovery may
reveal that Mosely is unable to prove that acts of harass-
ment took place within that critical window of time. She has
alleged, however, that they did, and that is enough
for purposes of Rule 12(b)(6).
V
We conclude, in summary, that Mosely is entitled to
sue as a parent whose procedural rights under the IDEA
were infringed, but she cannot represent Melvin as long
14 Nos. 03-4074, 03-4120
as she remains pro se; that the district court should not
have dismissed her IDEA case as jurisdictionally barred
based only on the fact that she did not anticipate the
affirmative defense of exhaustion in her pleadings; that she
has alleged enough of an adverse action to continue with
her retaliation claim; and that the retaliation claim is not
so obviously time-barred that it may be dismissed under
Rule 12(b)(6). These two cases are REVERSED and RE-
MANDED for further proceedings consistent with this
opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-4-06