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Appeals Court Revives Teacher's Free-Speech Lawsuit

A federal appeals court has revived the First Amendment retaliation lawsuit of an Illinois teacher who contends he was fired after raising public concerns about an alleged student threat against him.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, unanimously reversed a federal district court and ordered that the suit against the Harvard, Ill., school district and two administrators be allowed to go forward.

The case was brought by Sean Gschwind, who was a 6th grade math teacher who allegedly had had a series of difficulties with one of his students and the student's father. The father threatened the teacher with a lawsuit after the teacher had tried to talk to him about his son's behavior. Meanwhile, the 12- or 13-year-old student's older brother had allegedly assaulted the school's assistant principal in an earlier incident.

Later, as part of a class assignment, the student composed a song titled, "I Stabbed Gschwind." The teacher felt threatened, and he discussed the matter with his principal, the assistant principal (the same one who had allegedly been assaulted by the student's brother), and the school's police liaison. The police officer urged him to file a criminal complaint, which Gschwind was inclined to follow through with (and did) because he wanted to "bring public light" to a safety issue at the school, he said in an affidavit.

The school administrators had a less supportive reaction, according to Gschwind's suit. The day after the teacher filed the criminal complaint, the assistant principal gave him an "unsatisfactory" evaluation for a "lack of interpersonal skills in relating to students, parents, and colleagues." All the teacher's previous evaluations had been satisfactory.

The teacher was told that if he did not resign before the next school board meeting, his contract would not be renewed for the next school year.

Gschwind sued, alleging a violation of his free-speech rights. The federal district court ruled for the district and the two administrators, holding that the teacher's complaint about being threatened was not protected by the First Amendment because it did not involve a matter of public concern.

In its Aug. 31 decision in Gschwind v. Heiden, the 7th Circuit court panel reversed. First, said the opinion by Judge Richard A. Posner, "a jury could easily find that the real reason" for the teacher's discharge "was the threat of litigation by the student's belligerent father."

Posner said the district judge overlooked the teacher's statement that he filed a criminal complaint to shed light on the problem of potential violence at his school. (The judge noted that it had no information about the outcome of the juvenile case. The student was suspended from school for two days.)

Judge Posner, who as I have noted here in the blog is something of a keen observer of school legal matters, said in the new opinion that educational administrators "are entitled, in the name of academic freedom and efficient educational administration, to a considerable degree of judicial forbearance in matters of discipline" and "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 threats in school are a matter of public concern, he added. The two administrators did not merit immunity from the teacher's suit, and the district is potentially liable because it, in effect, had a policy of allowing principals to dismiss teachers for potentially unconstitutional reasons.

"The suit was terminated prematurely," Posner said.

The decision is a rare victory of any kind in recent years for a teacher in a free-speech retaliation suit, even if it is a tentative win at this point.

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