Federal Court Says Teacher Had Protected Right to Report Student
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
Aug. 31, 2012 – In
a timely case for back-to-school season, a federal appeals court
recently ruled in favor of a sixth-grade math teacher who was threatened
by a student, filed a criminal complaint, and was fired by the school,
which is located near the Wisconsin border in Illinois.
During “math karaoke,” one of teacher Sean Gschwind’s students recited the lyrics to
Eazy-E’s rap song “Boyz in Da Hood,” adding his
own lyric, “I stabbed Gschwind.” The student was supposed to
create a song relating to something he learned in math class.
Gschwind spoke to a police liaison, the
principal, and the assistant principal. At the urging of the police
liaison, Gschwind filed a criminal complaint for
disorderly conduct against the student. The Illinois disorderly conduct
laws prohibit threats of violence against persons at a school.
However, the principal and assistant principal discouraged the
complaint, apparently fearful that the student’s parents would
file a lawsuit against the school. The student’s father had
previously threatened a lawsuit after Gschwind told the father his son
beat up another student.
The day after Gschwind filed the complaint for disorderly conduct, he
received an “unsatisfactory” evaluation from the assistant
principal, who said Gschwind lacked “interpersonal skills in
relating to students, parents and colleagues.”
The principal and assistant principal also informed Gschwind that if he
did not resign after the school year, they would recommend that his
contract not be renewed. Gschwind filed this federal lawsuit, claiming
the school district, the principal, and the assistant principal
illegally retaliated against him for exercising a First Amendment right
of free speech.
A federal district court granted summary judgment to the defendants,
concluding that the criminal complaint against the student did not
involve a matter of public concern and thus was not protected speech.
That is, the court agreed the complaint concerned a private
However, in Gschwind
v. Heiden et al., No. 12-1755 (Aug. 31, 2012), the
U.S. Court of Appeals for the Seventh Circuit reversed, concluding that
summary judgment was premature.
“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,” wrote Judge Richard
The three-judge appeals panel noted that Gschwind may have filed the
complaint to prevent future threats against himself, but his affidavit
claims he filed it to make the public aware of the incident. The
defendants argued that juvenile records can’t be made public.
The appeals panel was not convinced. “[C]ertainly the incident
giving rise to the accusation – ‘I stabbed Gschwind’
– could not be silenced consistently with the First
Amendment,” wrote Judge Posner, explaining that people talk and
the case was reported by a media outlet.
Judge Posner said school administrators must consider the possibility
of lawsuits by “indignant” or “often overprotective or
downright unreasonable parents,” but Illinois law requires schools
to report incidents of battery or intimidation to law enforcement.
“There has been no suggestion that such regulations infringe
academic freedom protected by the First Amendment,” wrote Judge
Posner, concluding that “summary judgment should not have been
granted on the ground that the plaintiff’s criminal complaint was
a matter of purely private concern.”
The panel suggested the school district could be liable for policies
allowing unconstitutional employment terminations, but not for the
tortious conduct of employees.