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Teacher’s Retaliation Suit Against School District For Exercising Right of Free Speech Involved a Matter of Public Concern


September 12, 2012

In Gschwind v. Heiden, the Seventh Circuit Court of Appeals found that the dismissal of a teacher’s suit against a school district for retaliation for exercising free speech rights involved a matter of public concern and, thus, summary judgment should not have been granted against the teacher.

The plaintiff, who taught sixth grade math, claimed that he was forced to resign after he complained to school administrators and the police about a threat to him made by a student. The student had previously threatened and hit students at the school. The teacher met with the student’s parents concerning such events and, in response, the student’s father threatened the teacher with a class action lawsuit and told the teacher that his older son should have assaulted the teacher instead.

After the meeting with the student’s parents, the teacher called on the student in class to perform a “math karaoke,” which was an assignment to create a song relating to something learned in class. The student’s song was based on a rap song and contained lyrics about the student stabbing the teacher. The teacher advised the administration of the incident and talked about filing a criminal complaint against the student.

After the teacher filed the criminal complaint, the assistant principal gave the teacher an unsatisfactory evaluation, after previously only receiving satisfactory evaluations. The basis for the unsatisfactory evaluation was “lack of interpersonal skills in relating to students, parents, and colleagues.” The administration advised the teacher that if he did not resign the administration would recommend that his contract not be renewed. The teacher then filed suit against the school district for violation of his right to free speech, alleging that he had been constructively discharged for complaining and filing the criminal complaint against the student.

The school district argued that the teacher’s complaint and filing of the suit were purely personal acts and not the exercise of free speech. The Seventh Circuit disagreed, finding that the teacher filed the criminal complaint in part to promote the smooth and safe operation of the school and to bring to public light the student’s threat to the teacher. The court noted that a speech of public importance becomes a matter of private concern when it is solely motivated by the speaker’s personal interest. Because the teacher had shown that his filing of the criminal complaint was motivated in part to bring to public light the fact that such an incident had happened in a classroom, the teacher had sufficiently established an action for retaliation based on his exercise of free speech.

The Gschwind case demonstrates that courts will broadly interpret what constitutes the exercise of free speech in a retaliation case. If the plaintiff can establish that the alleged act of free speech was at least in part motivated by a concern to bring an act to public light, the plaintiff will likely avoid summary. 

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