In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 17-1577 & 17-2215

ROBERT L. BREUDER,

Plaintiff-Appellee,

v.

BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO.

502, et al.,

Defendants-Appellants.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15-cv-09323 — Andrea R. Wood, Judge.

____________________

ARGUED NOVEMBER 7, 2017 — DECIDED APRIL 17, 2018

____________________

Before EASTERBROOK, ROVNER, and HAMILTON, Circuit 

Judges.

EASTERBROOK, Circuit Judge. The College of DuPage is a 

two-year community college in Glen Ellyn, Illinois. In 2008

the Board of Trustees of Community College District No. 

502, which operates the College, hired Robert L. Breuder as 

the College’s president. After extensions, his contract ran 

through 2019. But in October 2015 newly elected members of 
2 Nos. 17-1577 & 17-2215

the Board, who had campaigned on a pledge to remove

Breuder, discharged him without notice or a hearing. Resolutions adopted by the Board stated that Breuder had commi\ed misconduct. The Board did not offer him a hearing 

and has refused to comply with clauses in his contract covering severance pay and retirement benefits. Breuder then filed 

this suit, which rests not only on Illinois contract and defamation law but also on 42 U.S.C. §1983. Breuder contends 

that his sacking without a hearing, but with defamatory 

statements, deprived him of both liberty and property without due process of law.

The Board as an entity moved to dismiss the complaint, 

contending among other things that Breuder never had a 

valid contract of employment. Individual members of the 

Board moved to dismiss the §1983 claim on qualifiedimmunity grounds. The district court denied both motions. 

238 F. Supp. 3d 1054 (N.D. Ill. 2017). It certified the former 

decision for an interlocutory appeal, which we agreed to entertain. See 28 U.S.C. §1292(b). The Board’s members took an 

interlocutory appeal of the la\er decision on the authority of 

Mitchell v. Forsyth, 472 U.S. 511 (1985).

The Board’s appeal starts with a norm of Illinois law: a 

governmental body whose members serve limited terms 

may not enter into contracts that extend beyond those terms. 

This rule was established in Millikin v. Edgar County, 142 Ill. 

528 (1892), and has been applied since then, unless the state’s 

legislature establishes a different rule. Breuder was hired in 

November 2008 on a contract that ran from January 2009 

through June 2012. But the terms of some of the members 

si\ing in fall 2008 expired the next spring. This meant, the 

Board submits, that Breuder’s tenure could not run past May
Nos. 17-1577 & 17-2215 3

2009. By the same reasoning the contract’s two extensions, 

running through 2019, were invalid. The members elected in 

April 2015 (plus those elected earlier and continuing to 

serve) were entitled to make their own decisions about the 

College’s presidency, the Board insists.

The difficulty with this argument is Hostrop v. Board of 

Junior College District No. 515, 523 F.2d 569 (7th Cir. 1975), 

which holds that legislation superseded the Millikin rule for 

community colleges. This case is almost a replay of Hostrop, 

for that dispute, too, arose from a contract giving a college 

president tenure beyond the date of the next election to the 

board. Our decision relied on 110 ILCS 805/3-32, which permits the board of a community-college district to “establish 

tenure policies for the employment of teachers and administrative personnel”. See also 110 ILCS 805/3-42 (board may 

“employ such personnel as may be needed” and establish 

“policies governing their employment and dismissal”).

None of the statutory language that led to the reasoning 

and result of Hostrop has changed since 1975, nor has any 

Illinois court suggested that we misunderstood state law.

Illinois courts have cited Hostrop only once on an issue related to Millikin, see Libertyville Education Association v. Board of 

Education, 56 Ill. App. 3d 503, 506 (1977), and that decision 

suggests agreement with Hostrop’s conclusion.

The state legislature has limited the powers of community-college districts with respect to contracts signed after September 22, 2015. 110 ILCS 805/3-65(b) (community-college 

contracts may not exceed four years; severance pay is 

capped at one year’s salary). That statute does not apply to 

this suit or undermine the principle of Hostrop that a contract 

with a college president may extend past the next election; to 
4 Nos. 17-1577 & 17-2215

the contrary, §805/3-65 implies that community colleges possess that power under §805/3-32. Why else limit its exercise?

According to the Board, the enactment of two other statutes, 110 ILCS 805/3B-1, 3B-2, providing rules for the handling of tenure for members of the academic faculty, implicitly nullifies whatever power exists under §805/3-32. But Illinois follows the normal understanding that one statute implicitly repeals another only when their terms are incompatible. See U.S. Bank N.A. v. Clark, 216 Ill. 2d 334, 344 (2005). 

Nothing in those statutes is incompatible with the grant of 

power in §805/3-32 to establish the tenure of administrative 

officers—to protect a bursar against arbitrary treatment with 

a rule requiring cause for dismissal, or to give a president a 

term of years in order to compete against institutions in other states fishing in the same pool of talent.

A college in Illinois would have considerable difficulty 

hiring a quality president if it could offer only brief employment, while colleges elsewhere were offering the fiveyear (or longer) contracts common for a college’s top office.

The Board’s members serve staggered six-year terms. Two or 

three posts come up for election every two years—and if any 

member of the Board has died or resigned recently, that position also is filled at these biennial elections. If Millikin applies, no appointment could exceed two years, and many 

would face much shorter limits. But because the new statutes about academic tenure do not address the subject of academic administration, they do not affect the laws that

Hostrop interpreted.

The Board offers two other objections to Breuder’s contract. First, it observes that Illinois law permits the Board to 

act by majority vote, provided that a quorum is present. 110 
Nos. 17-1577 & 17-2215 5

ILCS 805/3-9. As the Board has seven members, 110 ILCS 

805/3-6, this allows as few as three to take an effective decision (if only four or five appear for a meeting). But Breuder’s 

contract provides that he may be dismissed only by the votes 

of at least five members, a supermajority. Second, the contract provides that the Board (or its chair) may extend the 

contract for one year without holding a public meeting. The 

Board contends that this clause violates the Illinois Open 

Meetings Act. 5 ILCS 120/1 to 120/7.5.

The district court concluded that both contested parts of 

the contract are valid. 238 F. Supp. 3d at 1061–62. The judge 

thought that the Board’s right to determine an administrator’s tenure includes a right to adjust procedures that affect 

that tenure, as the security of an office depends on both substantive and procedural ingredients. We need not determine 

whether that conclusion is correct—a subject to which state 

authority does not speak—because there is a difference between the validity of a clause and the validity of the contract. 

The Board supposes that, if any clause in a contract is improper under state law, then the contract as a whole is void. 

It does not furnish any authority for that belief. Courts in Illinois regularly refuse to enforce particular clauses—say, 

those creating penalties or imposing unreasonable restraints 

on competition after the end of employment—while enforcing the remainder of the contracts. See, e.g., Health Professionals, Ltd. v. Johnson, 339 Ill. App. 3d 1021 (2003); Tortoriello 

v. Gerald Nissan of North Aurora, Inc., 379 Ill. App. 3d 214, 

238–39 (2008). The Board can prevail on this appeal only by 

persuading us that Breuder never had a valid contract. As 

we have rejected that contention, disputes about particular 

clauses may be left to resolution in the ordinary course, by 
6 Nos. 17-1577 & 17-2215

appeal from the final decision, if they turn out to affect the 

judgment (as these clauses may not).

This brings us to the second appeal. Public officials are 

entitled to qualified immunity from damages under §1983 

unless they transgress clearly established law. See, e.g., 

Kisela v. Hughes, 138 S. Ct. 1148 (2018) (collecting decisions). 

The Board’s members contend that the validity of Breuder’s 

contract was at least uncertain, so that they could not have 

violated any clearly established rule. There are two problems

with this contention.

The first is that, when discharging Breuder without giving him an opportunity for a hearing, the Board issued a 

statement declaring that he had commi\ed misconduct. Codd 

v. Velger, 429 U.S. 624 (1977), holds that even a person who 

has no property interest in a public job has a constitutional 

entitlement to a hearing before being defamed as part of a 

discharge, or at a minimum to a name-clearing hearing after 

the discharge. See also Wisconsin v. Constantineau, 400 U.S. 

433 (1971). The Board has not offered that opportunity to 

Breuder, and the members insist that they need not do so. 

The law is clearly established against them.

The second is that a hearing is required whenever the 

officeholder has a “legitimate claim of entitlement”, Board of

Regents v. Roth, 408 U.S. 564, 577 (1972), to keep the job. 

Breuder, who had a wri\en contract for a term of years, assuredly had a legitimate claim of entitlement to have the 

Board honor its promise. The claim may have failed in the 

end, but that did not eliminate the claim’s existence.

To see this, consider a situation in which a member of the 

philosophy faculty is employed under a contract forbidding 
Nos. 17-1577 & 17-2215 7

discharge except for misconduct or the elimination of the 

whole department. (That’s a standard term of a contract for 

academic tenure.) Imagine the Board saying: “You have 

commi\ed misconduct; therefore your tenure has ended; 

since you no longer have tenure, we need not offer you a 

hearing at which we have to demonstrate that misconduct 

occurred.” The Supreme Court clearly established in Roth

and its many successors that this maneuver won’t work. A 

hearing is required to establish whether misconduct occurred. Just so here. The Board believes that Breuder’s contract was invalid, making him an at-will employee (just like 

the teacher in our example), or that the contract could be 

cancelled for misconduct. But whether the contract was valid 

was subject to legitimate debate, and a hearing would have 

allowed Breuder to articulate his position and insist that the 

contract be enforced. Both the duration of Breuder’s tenure

and the existence of misconduct (essential to discharge him 

early, if the contract is valid) were debatable subjects. The 

members who refused even to listen to him violated his 

clearly established rights.

A college may well be entitled to fire any employee 

summarily, as long as it is prepared to pay off the contract’s 

remaining years or whatever damages are established in 

state litigation. Cf. Mid-American Waste Systems, Inc. v. Gary, 

49 F.3d 286 (7th Cir. 1995). That’s how the tenure of college 

football coaches ends, and it is hard to see why college presidents would be immune to the same procedure. But the 

Board and its members insist that they don’t owe Breuder 

one cent, and they have not contended that the process due 

for a summary termination is the opportunity to sue in state 

court. When the decision is made by a body’s governing 

board, it would be hard to contend that the action is random 
8 Nos. 17-1577 & 17-2215

and unauthorized for the purpose of ParraR v. Taylor, 451 

U.S. 527 (1981), and its successors.

The Board’s members don’t identify a lack of clarity in 

the rules established by Roth, Codd, and similar decisions. 

Instead they deem these rules inapplicable. They maintain 

that the statements issued in connection with Breuder’s discharge weren’t defamatory as a ma\er of Illinois law because they asserted opinions rather than facts (or that they

have a First Amendment defense because Breuder is a public 

figure). They tell us that before acting they received a legal 

opinion that Breuder’s contract was invalid under Millikin. 

They have not put a copy of this opinion into the record 

(they rely instead on a memorandum to the board, by an 

unnamed author, summarizing conclusions reached by some 

other anonymous person), so they cannot present an adviceof-counsel defense, but they maintain that they were entitled 

to rely on this advice nonetheless. Yet these contentions do 

not undermine the clarity of the legal rules about when people are entitled to hearings. They may provide defenses to 

claims based on state law, or perhaps an opportunity to sue 

a lawyer for malpractice, or perhaps highlight issues that 

might have been pursued at a hearing before the Board, but 

they do not diminish the strength of Breuder’s constitutional 

opportunity for a hearing.

This wraps up the issues presented by the appeals certified under §1292(b) or authorized by the invocation of qualified immunity. The individual appellants ask us to go on 

and decide whether Breuder has a good defamation claim

under Illinois law. They contend that “pendent appellate jurisdiction” permits us to act across the board because all issues are “inextricably intertwined” in the sense that all arise 
Nos. 17-1577 & 17-2215 9

from Breuder’s discharge. That approach, if followed, would 

pre\y much extinguish the final-judgment requirement of 28 

U.S.C. §1291. The Supreme Court has told us that interlocutory appeals complicate and delay the administration of justice, and the category of permissible appeals should not be 

expanded. See, e.g., Mohawk Industries, Inc. v. Carpenter, 558 

U.S. 100 (2009). And it has thrown cold water on “pendent 

appellate jurisdiction” in particular. Swint v. Chambers County Commission, 514 U.S. 35, 43–51 (1995). Although Swint did 

not kill the doctrine—it survived in Clinton v. Jones, 520 U.S. 

681, 707 n.41 (1997), at least with respect to Presidents—

Swint concluded that the doctrine must be strictly limited to 

avoid undermining the discretion that §1292(b) gives to district judges and appellate judges. See also Microsoft Corp. v. 

Baker, 137 S. Ct. 1702, 1714 (2017). Extending the doctrine to 

allow state-law claims to receive interlocutory review any 

time a constitutional claim permits a qualified-immunity 

appeal would do far too much damage to both §1291 and 

§1292(b). We decline the invitation.

On the subjects properly before us, the district court’s decisions are affirmed. Other ma\ers may be reviewed on appeal from the final decision. Appeal No. 17-1577 is dismissed 

for lack of jurisdiction to the extent that appellants seek to 

present any issues beyond their request for qualified immunity.