In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2084

Sharon Gernetzke, individually, and

Doreen Bezotte, parent and legal 

guardian of Joseph Bezotte,

Plaintiffs-Appellants,

v.

Kenosha Unified School District No. 1,

Michael Johnson in his official capacity

as Superintendent of Kenosha Unified

School District No. 1, and Chester Pulaski in

his official capacity as Principal of

George N. Tremper Senior High School,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00 C 201--Charles N. Clevert, Judge.

Argued October 29, 2001--Decided December 14, 2001

 Before Flaum, Chief Judge, and Posner and

Diane P. Wood, Circuit Judges.

 Posner, Circuit Judge. Two high-school

students sued a Wisconsin public school

district and two of its administrators,

the superintendent of the district and

the principal of the plaintiffs’ school

(which is located in the City of

Kenosha), charging violations of their

constitutional and statutory rights to

religious freedom. They sought both

damages and injunctive relief. The

individual defendants were sued only in

their official capacities, so naming them

as defendants added nothing to the suit.

The plaintiffs appeal from the grant of

summary judgment to the defendants.

 The plaintiffs belonged to the Bible

Club at their school. In response to the

school’s invitation to all student groups

to paint murals in the main hallway of

the school, the Club submitted a sketch

for a mural 4 feet by 5 feet depicting a

heart, two doves, an open Bible with a

well-known passage from the New Testament

(John 3:16: "For God so loved the world,

that he gave his only begotten Son, that
whosoever believeth in him should not

perish, but have everlasting life"), and

a large cross. The principal approved all

but the cross. He was afraid that the

inclusion of so salient a Christian

symbol would invite a lawsuit against the

school based on the establishment clause

of the First Amendment and might also

require him to approve murals of a

Satanic or neo-Nazi character, which

would cause an uproar. The school body

includes adherents of both these unlovely

creeds--and in fact the Bible Club’s

mural was defaced with a witchcraft

symbol, and a group of skinheads

unsuccessfully petitioned the principal

to allow them to paint a mural containing

a swastika. (According to a newspaper

article in the record, the school has

"active [white] supremacists enrolled

there" and there have been racial

incidents.) The principal had also

forbidden mention of a specific brand of

beer in the mural proposed by the

Students Against Drunk Driving.

 The plaintiffs complain not only about

the excision of the cross from their

mural but also about the principal’s

refusal to allow one of them to

distribute unspecified religious

literature schoolwide. In support of the

first charge they cite the Equal Access

Act, 20 U.S.C. sec. 4071(a). The Act

forbids a school to deny equal access to

its premises to a student group merely on

the basis of the content (e.g.,

religious) of the speech at meetings of

the group. The school could therefore not

discriminate against the Bible Club

merely because it is a religious rather

than a secular association. Had the

school, therefore, while permitting the

Bible Club to meet on school premises,

forbidden it to announce its meetings or

otherwise compete on equal terms with

comparable but nonreligious student

groups, it would have violated the Act.

Board of Education v. Mergens, 496 U.S.

226, 247 (1990); Pope by Pope v. East

Brunswick Board of Education, 12 F.3d

1244, 1256 (3d Cir. 1993). But there is

no evidence of discrimination against the

Bible Club. The principal forbade the

inclusion of a large cross in the Club’s

mural because he was afraid that it might

invite a lawsuit (cf. Linnemeir v. Board

of Trustees, 260 F.3d 757, 759 (7th Cir.

2001)) and incite ugly conflicts among

the students. His reaction to the
swastika, and to the naming of a brand of

beer, in proposed secular murals shows

that he was discriminating not against

religion but merely against displays,

religious or secular, that he reasonably

believed likely to lead to litigation or

disorder. (The naming of a specific brand

of beer in the mural of a student

abstinence group might have encouraged

students to show their defiance by

getting drunk on it.)

 The principal’s decision to forbid the

display of the cross was in any event

insulated from liability under the Act by

the provision that "nothing in [the Act]

shall be construed to limit the authority

of the school . . . to maintain order and

discipline on school premises." 20 U.S.C.

sec. 4071(f). It is true that to suppress

expression on the basis of the angry

reaction that it may generate is

precisely what the "heckler’s veto"

cases, most famously Terminiello v. City

of Chicago, 337 U.S. 1, 3-5 (1949),

forbid in the name of the free-speech

clause of the First Amendment. But the

"order and discipline" defense that we

just quoted suggests that the principle

of those cases has not been carried over

into the Equal Access Act. And anyway the

First Amendment has been sensibly

interpreted to allow school authorities

greater control over the free speech of

students than the state is permitted to

exercise over the free speech of adults

engaged in political expression in the

normal venues. "A school need not

tolerate student speech that is

inconsistent with its ’basic educational

mission’ . . . even though the government

could not censor similar speech outside

the school." Hazelwood School District v.

Kuhlmeier, 484 U.S. 260, 266 (1988); see

also Muller by Muller v. Jefferson

Lighthouse School, 98 F.3d 1530, 1536-37

(7th Cir. 1996); Baxter by Baxter v. Vigo

County School Corp., 26 F.3d 728, 737-38

(7th Cir. 1994). Order and discipline are

part of any high school’s basic

educational mission; without them, there

is no education.

 The plaintiffs claim that the excision

of the cross and the refusal to permit

distribution of religious literature also

interfered with the free exercise of

their religion, in violation of the

religion clauses of the First Amendment

as interpreted in such cases as Good News
Club v. Milford Central School, 121 S.

Ct. 2093, 2100-02 (2001). We shall not

have to reach the merits of that claim,

which anyway seem dim, at least so far as

the excision of the cross is concerned

(the refusal to permit the plaintiffs to

distribute religious literature was

challenged only under the First

Amendment, and not under the Equal Access

Act as well); we shall not conceal our

doubts that the First Amendment has a

broader scope than the Equal Access Act,

Hsu By and Through Hsu v. Roslyn Union

Free School District No. 3, 85 F.3d 839,

870 and n. 30 (2d Cir. 1996), although

the Supreme Court has reserved the issue.

Board of Education v. Mergens, supra, 496

U.S. at 247; see also Ceniceros By and

Through Risser v. Board of Trustees, 106

F.3d 878, 881 n. 3 (9th Cir. 1997).

 The procedural vehicle for the

constitutional claim is 42 U.S.C. sec.

1983, and an initial puzzle is why the

plaintiffs did not sue the individual

defendants in their individual

capacities, where they would not face the

Monell issue that we discuss below and

show is fatal to the claim regardless of

the claim’s merits. We did not obtain a

satisfactory response when we asked this

question of the plaintiffs’ lawyer at

oral argument.

 We pause here to express our doubts

about the appropriateness of litigation

that is intended, whether by the friends

of religion or by its enemies, to wrest

the day-to-day control of our troubled

public schools from school administrators

and hand it over to judges and jurors who

lack both knowledge of and responsibility

for the operation of the public schools.

The plaintiffs’ high school is an urban

school with 2000 students and 42 student

groups. The regulatory and disciplinary

problems implied by these numbers are

formidable. In her diary, which is part

of the record, plaintiff Gernetzke wrote:

"[T]here’s something exciting[:] I’m

suing Kenosha Unified School District #1

. . . . The law suit is getting very

interesting. KUSD is getting themselves

deeper in cow dung than what they

realize!" Do we really need this?

 Monell v. Department of Social Services,

436 U.S. 658, 690, 694 (1978), holds that

the doctrine of respondeat superior may

not be used to fasten liability on a
local government in a suit under section

1983. See also Cornfield by Lewis v. Con

solidated High School District No. 230,

991 F.2d 1316, 1324 (7th Cir. 1993). The

predominant though not unanimous view is

that Monell’s holding applies regardless

of the nature of the relief sought.

Compare, e.g., Greensboro Professional

Fire Fighters Ass’n, Local 3157 v. City

of Greensboro, 64 F.3d 962, 967 n. 6 (4th

Cir. 1995), and Church v. City of

Huntsville, 30 F.3d 1332, 1347 (11th Cir.

1994), with Chaloux v. Killeen, 886 F.2d

247, 250-51 (9th Cir. 1989); see also

Reynolds v. Giuliani, 118 F. Supp. 2d

352, 363 (S.D.N.Y. 2000). We need not

take sides in this case, since the

plaintiffs do not argue that Monell is

applicable only to their damages claim.

 Respondeat superior is of course the

judge-made doctrine, applicable to most

tort cases but not to section 1983 cases,

that makes an employer liable even if

faultless for the torts its employees

commit in the course of their employment.

So the plaintiffs in this case cannot

prevail against the school district by

showing merely that the superintendent of

the district and the principal of their

school, acting within the scope of these

officials’ employment and therefore under

color of state law, deprived the

plaintiffs of religious liberty. They

must show that the district itself, which

is to say the officials or official

boards that constitute the relevant final

decisionmaking authority (legislative or

executive) within the district, was

directly responsible for the deprivation.

McMillian v. Monroe County, 520 U.S. 781,

784-85 (1997); Horwitz v. Board of

Education, 260 F.3d 602, 619 (7th Cir.

2001); Baskin v. City of Des Plaines, 138

F.3d 701, 705 (7th Cir. 1998).

 This standard for municipal liability is

often referred to as liability for

"policy or custom," after language in

Monell v. Department of Social Services,

supra, 436 U.S. at 694. And also tracking

language in Monell courts often refer to

the municipality’s final decisionmaking

authority as its "final policymaking

authority." E.g., Baskin v. City of Des

Plaines, supra, 138 F.3d at 705. These

usages are potentially misleading. It

doesn’t matter what form the action of

the responsible authority that injures

the plaintiff takes. It might be an
ordinance, a regulation, an executive

policy, or an executive act (such as

firing the plaintiff). The question is

whether the promulgator, or the actor, as

the case may be--in other words, the

decisionmaker--was at the apex of

authority for the action in question.

See, e.g., Eversole v. Steele, 59 F.3d

710, 716 (7th Cir. 1995). An executive

official who rather than making policy

merely implements legislative policy acts

merely as a delegate of the legislature,

and his act is therefore not the act of

the municipality itself for purposes of

liability under section 1983. Auriemma v.

Rice, 957 F.2d 397 (7th Cir. 1992).

 The bearing of delegation on the

principle of Monell turns out to be

critical in this case. The final

decisionmaking authority of the school

district is lodged in the district’s

school board, but the board has

promulgated regulations that delegate the

administration of the five high schools

in the school district to the principal

of each school. This delegation, the

plaintiffs argue, makes the principal the

final decisionmaker so far as the mural

and the request to be allowed to

distribute literature are concerned. That

cannot be right. It would collapse direct

and derivative liability. Every public

employee, including the policeman on the

beat and the teacher in the public

school, exercises authority ultimately

delegated to him or her by their public

employer’s supreme governing organs. A

police officer has authority to arrest,

and that authority is "final" in the

practical sense that he doesn’t have to

consult anyone before making an arrest;

likewise a teacher does not have to

consult anyone before flunking a student.

That is a perfectly good use of the word

"final" in ordinary conversation but it

does not fit the cases; for if a police

department or a school district were

liable for employees’ actions that it

authorized but did not direct, we would

be back in the world of respondeat

superior. To avoid this the cases limit

municipal liability under section 1983 to

situations in which the official who

commits the alleged violation of the

plaintiff’s rights has authority that is

final in the special sense that there is

no higher authority. Partee v.

Metropolitan School District, 954 F.2d

454, 456 (7th Cir. 1992); Beattie v.
Madison County School District, 254 F.3d

595, 603 (5th Cir. 2001). School

superintendents, principals, and teachers

in Wisconsin do not have final authority

in this sense, Wis. Stat. sec.

120.13(b)(1); cf. Horwitz v. Board of

Education, supra, 260 F.3d at 619; Duda

v. Board of Education, 133 F.3d 1054,

1061 (7th Cir. 1998); Cornfield by Lewis

v. Consolidated High School District No.

230, supra, 991 F.2d at 1325-26, as they

would if theWisconsin legislature had

vested the authority to make all

decisions concerning school

administration in them rather than in the

school boards. Delegation is not

direction; authorization is not command;

permission does not constitute the

permittee the final policymaking

authority. City of St. Louis v.

Praprotnik, 485 U.S. 112, 126 (1988)

(plurality opinion); Brown v. Neumann,

188 F.3d 1289, 1290 (11th Cir. 1999) (per

curiam). Only the delegation ("conferral"

would be a better term) of final

authority makes the "delegate" the final

authority. City of St. Louis v.

Praprotnik, supra, 485 U.S. at 126-27;

Cornfield by Lewis v. Consolidated High

School District No. 230, supra, 991 F.2d

at 1325; Ware v. Unified School District

No. 492, 902 F.2d 815, 818-19 (10th Cir.

1990).

 It is true that by adopting an

employee’s action as its own (what is

called "ratification"), a public employer

becomes the author of the action for

purposes of liability under section 1983.

Kujawski v. Board of Commissioners, 183

F.3d 734, 737 (7th Cir. 1999); Baskin v.

City of Des Plaines, supra, 138 F.3d at

705; Hyland v. Wonder, 117 F.3d 405, 416

(9th Cir. 1997). This is not a legal

fiction, at least in the bad sense of

that term, but merely recognition that

direction and approval do not differ

practically. The plaintiffs argue that

ratification occurred here when after

they brought this suit the school board

refused to direct the principal of their

school to alter his response to their

demand. The argument if accepted would

convert every public employee’s action

that a plaintiff wished to challenge into

the action of the employer. City of

Canton v. Harris, 489 U.S. 378, 391-92

(1989); Cygnar v. City of Chicago, 865

F.2d 827, 847 (7th Cir. 1989); Soderbeck

v. Burnett County, 752 F.2d 285, 293 (7th
Cir. 1985); Crowley v. Prince George’s

County, 890 F.2d 683, 687 (4th Cir.

1989); see also Smith v. Chicago School

Reform Board of Trustees, 165 F.3d 1142,

1149 (7th Cir. 1999); Jones v. City of

Chicago, 787 F.2d 200, 204-05 (7th Cir.

1986). From the plaintiff’s standpoint it

would be a case of "heads I win, tails

you lose." The plaintiff would ask the

employer for relief and if the employer

granted it would not have to sue, while

the employer who refused to grant the

relief requested would be punished by

being deemed to consent to the

application of the doctrine of respondeat

superior. Deliberate inaction might be

convincing evidence of delegation of

final decisionmaking authority, or of

ratification, cf. Jones v. City of

Chicago, supra, 787 F.2d at 204-05, but

there is no evidence of that here.

Affirmed.