Federal Court Says Teacher Had Protected Right to Report Student Threat 

By 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 interest.

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 Posner.

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.