The plaintiff taught sixth-grade math at a public school in Harvard, Illinois. 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 claimed 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 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.
Before the student threatened him, the plaintiff had met with the parents about a threat the student had made to another student. Several days later the plaintiff called on the student in class to perform his "math karaoke" — an assignment to create a song in which the lyrics would relate to something they'd learned in 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=GeNDnYc QOA (visited Aug. 28, 2012). GSCHWWIND was disturbed and stopped the class. The student was 12 or 13.
Teacher GSCHWIND spoke to the school's police liaison and to the principal and the assistant principal (the latter had been the victim of the assault by the student's brother). The plaintiff talked of filing a criminal complaint, and later did. 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." Somewhat suprisingly, the principal and assistant principal were not supportive.
The day after the plaintiff signed the complaint, the assistant principal gave him an "unsatisfactory" evaluation, a 180 degreee change from all of his previous evaluations. The 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 a threat of litigation by the student's belligerent father. 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 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."
The Court also considered 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 was based are well settled, which defeated 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.
In Illinois the school board is the ultimate policymaking body with regard to personnel decisions. 105 ILCS 5/10-20. After the holding in Wal-Mart Stores, Inc. v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 180 L.Ed.2d 374 (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.
The suit was terminated prematurely.
REVERSED AND REMANDED.
http://scholar.google.com/scholar_case?case=12945165193211548606&q=YouTube&hl=en&as_sdt=4,14,112,127,268,269,270,271,272,314,315,331,332,333,334,335,377,378&as_ylo=2009
