7th Circuit reinstates math teacher’s retaliation suit

Wednesday, September 5, 2012

An Illinois public school teacher who alleged he was forced to resign after filing a criminal complaint against one of his sixth-grade students has had his First Amendment retaliation lawsuit reinstated by a federal appeals court.

Sean Gschwind, who taught math at Harvard Junior High School, northwest of Chicago, met in 2005 with the parents of a student who allegedly had threatened another student. He met with the parents again after seeing the student beat up another student. The meeting did not go well, as the student’s father threatened Gschwind with a lawsuit.

Several days later, in December 2005, Gschwind gave his math students an assignment to write song lyrics related to something they had learned in class. The student in question wrote a rap song with the lyrics, “I stabbed Gschwind.”

Gschwind stopped class and spoke to the school’s police liaison, the principal and assistant principal. The teacher filed a disorderly conduct complaint against the student. He testified later in his deposition that his complaint was “a matter of public concern” because “it involved disorderly conduct that occurred in the classroom. That disorderly conduct had to do with public safety issues.”

After filing his complaint, Gschwind received his first negative employment evaluation. In March 2006 the principal told Gschwind it would be best if he resigned, as his teaching contract would not be renewed.

Gschwind resigned but then filed a federal lawsuit, contending that he was fired in retaliation for speaking out about safety issues and filing the disorderly conduct complaint. In October 2011, a federal district judge dismissed his complaint. The judge reasoned that Gschwind had spoken on a matter of personal concern, as opposed to a matter of public concern — a key requirement in public employee free-speech cases.

“In this case, the undisputed facts overwhelmingly demonstrate that plaintiff signed the complaint purely as a matter of private interest,” the district judge wrote. “While he makes a concerted effort after the fact to characterize the signing of the complaint as a matter of public concern, it is evident that at the time he did so as a perceived victim of a crime and out of concern for his own personal safety.”

Gschwind appealed to the 7th U.S. Circuit Court of Appeals. On Aug. 31, a three-judge panel reversed the district court in Gschwind v. Heiden. Judge Richard Posner, writing for the panel, determined that Gschwind did speak on a matter of public concern — school violence.

“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,” Posner wrote.

Posner noted that Gschwind’s affidavit stated he had filed the criminal complaint “to help ensure the smooth and safe operation of the school and everyone inside” and to “bring to the public light the fact that such an incident occurred.”

Posner concluded: “So, summary judgment should not have been granted on the ground that the plaintiff’s criminal complaint was a matter of purely private concern.”

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