In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1755

SEAN GSCHWIND,

Plaintiff-Appellant,

v.

LINDA HEIDEN, 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.

ARGUED AUGUST 7, 2012—DECIDED AUGUST 31, 2012

Before POSNER, TINDER, and HAMILTON, Circuit Judges.

POSNER, 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 assaulted 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 assignment 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 student’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 disorderly 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 complaint, 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 plaintiff’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 continue 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 Plaintiff’s teaching contract not be renewed for the following 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 complaint, 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 demonstrate that plaintiff signed the complaint purely

as a matter of private interest . . . as a perceived victim 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 violence, but have only wanted to deter further threats

against himself. However, in saying that the undisputed 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 freespeech 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 interests” (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 confidential 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 reference 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-math-teachersretaliation-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 exceptions—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 academic administrators are entitled, in the name of

academic freedom and efficient educational administration, to a considerable degree of judicial forbearance in

matters of discipline. See, e.g., Brandt v. Board of Education 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 overprotective 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 suggestion 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, however, 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 decision, 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 superintendent, 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 decisions 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 recommendations.” 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 decisions 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 employment decisions of which the class is complaining—commonality 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 discretion, conditions at different stores (or sites) do not

present a common question.” For sure that is not this case.

The suit was terminated prematurely.

REVERSED AND REMANDED.

8-31-12