Gernetzke v. Kenosha Unified School District No. 1

Decision Date14 December 2001
Docket NumberNo. 01-2084,PLAINTIFFS-APPELLANTS,DEFENDANTS-APPELLEES,01-2084
Parties(7th Cir. 2001) SHARON GERNETZKE, INDIVIDUALLY, AND DOREEN BEZOTTE, PARENT AND LEGAL GUARDIAN OF JOSEPH BEZOTTE,, v. KENOSHA UNIFIED SCHOOL DISTRICT NO. 1, MICHAEL JOHNSON IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF KENOSHA UNIFIED SCHOOL DISTRICT NO. 1, AND CHESTER PULASKI IN HIS OFFICIAL CAPACITY AS PRINCIPAL OF GEORGE N. TREMPER SENIOR HIGH SCHOOL,
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00 C 201--Charles N. Clevert, Judge.

Matthew D. Starver (argued), Erik W. Stanley, Liberty Counsel, Longwood, FL, for Appellants.

Linda Stover Isnard (argued), Von Briensen, Purtell & Roper, Racine, WI, for Appellees.

Before Flaum, Chief Judge, and Posner and Diane P. Wood, Circuit Judges.

Posner, Circuit Judge.

Two high-school students sued a Wisconsin public school district and two of its administrators, the superintendent of the district and the principal of the plaintiffs' school (which is located in the City of Kenosha), charging violations of their constitutional and statutory rights to religious freedom. They sought both damages and injunctive relief. The individual defendants were sued only in their official capacities, so naming them as defendants added nothing to the suit. The plaintiffs appeal from the grant of summary judgment to the defendants.

The plaintiffs belonged to the Bible Club at their school. In response to the school's invitation to all student groups to paint murals in the main hallway of the school, the Club submitted a sketch for a mural 4 feet by 5 feet depicting a heart, two doves, an open Bible with a well-known passage from the New Testament (John 3:16: "For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life"), and a large cross. The principal approved all but the cross. He was afraid that the inclusion of so salient a Christian symbol would invite a lawsuit against the school based on the establishment clause of the First Amendment and might also require him to approve murals of a Satanic or neo-Nazi character, which would cause an uproar. The school body includes adherents of both these unlovely creeds--and in fact the Bible Club's mural was defaced with a witchcraft symbol, and a group of skinheads unsuccessfully petitioned the principal to allow them to paint a mural containing a swastika. (According to a newspaper article in the record, the school has "active [white] supremacists enrolled there" and there have been racial incidents.) The principal had also forbidden mention of a specific brand of beer in the mural proposed by the Students Against Drunk Driving.

The plaintiffs complain not only about the excision of the cross from their mural but also about the principal's refusal to allow one of them to distribute unspecified religious literature schoolwide. In support of the first charge they cite the Equal Access Act, 20 U.S.C. sec. 4071(a). The Act forbids a school to deny equal access to its premises to a student group merely on the basis of the content (e.g., religious) of the speech at meetings of the group. The school could therefore not discriminate against the Bible Club merely because it is a religious rather than a secular association. Had the school, therefore, while permitting the Bible Club to meet on school premises, forbidden it to announce its meetings or otherwise compete on equal terms with comparable but non-religious student groups, it would have violated the Act. Board of Education v. Mergens, 496 U.S. 226, 247 (1990); Pope by Pope v. East Brunswick Board of Education, 12 F.3d 1244, 1256 (3d Cir. 1993). But there is no evidence of discrimination against the Bible Club. The principal forbade the inclusion of a large cross in the Club's mural because he was afraid that it might invite a lawsuit (cf. Linnemeir v. Board of Trustees, 260 F.3d 757, 759 (7th Cir. 2001)) and incite ugly conflicts among the students. His reaction to the swastika, and to the naming of a brand of beer, in proposed secular murals shows that he was discriminating not against religion but merely against displays, religious or secular, that he reasonably believed likely to lead to litigation or disorder. (The naming of a specific brand of beer in the mural of a student abstinence group might have encouraged students to show their defiance by getting drunk on it.)

The principal's decision to forbid the display of the cross was in any event insulated from liability under the Act by the provision that "nothing in [the Act] shall be construed to limit the authority of the school . . . to maintain order and discipline on school premises." 20 U.S.C. sec. 4071(f). It is true that to suppress expression on the basis of the angry reaction that it may generate is precisely what the "heckler's veto" cases, most famously Terminiello v. City of Chicago, 337 U.S. 1, 3-5 (1949), forbid in the name of the free-speech clause of the First Amendment. But the "order and discipline" defense that we just quoted suggests that the principle of those cases has not been carried over into the Equal Access Act. And anyway the First Amendment has been sensibly interpreted to allow school authorities greater control over the free speech of students than the state is permitted to exercise over the free speech of adults engaged in political expression in the normal venues. "A school need not tolerate student speech that is inconsistent with its 'basic educational mission' . . . even though the government could not censor similar speech outside the school." Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266 (1988); see also Muller by Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1536-37 (7th Cir. 1996); Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 737-38 (7th Cir. 1994). Order and discipline are part of any high school's basic educational mission; without them, there is no education.

The plaintiffs claim that the excision of the cross and the refusal to permit distribution of religious literature also interfered with the free exercise of their religion, in violation of the religion clauses of the First Amendment as interpreted in such cases as Good News Club v. Milford Central School, 121 S. Ct. 2093, 2100-02 (2001). We shall not have to reach the merits of that claim, which anyway seem dim, at least so far as the excision of the cross is concerned (the refusal to permit the plaintiffs to distribute religious literature was challenged only under the First Amendment, and not under the Equal Access Act as well); we shall not conceal our doubts that the First Amendment has a broader scope than the Equal Access Act, Hsu By and Through Hsu v. Roslyn Union Free School District No. 3, 85 F.3d 839, 870 and n. 30 (2d Cir. 1996), although the Supreme Court has reserved the issue. Board of Education v. Mergens, supra, 496 U.S. at 247; see also Ceniceros By and Through Risser v. Board of Trustees, 106 F.3d 878, 881 n. 3 (9th Cir. 1997).

The procedural vehicle for the constitutional claim is 42 U.S.C. sec. 1983, and an initial puzzle is why the plaintiffs did not sue the individual defendants in their individual capacities, where they would not face the Monell issue that we discuss below and show is fatal to the claim regardless of the claim's merits. We did not obtain a satisfactory response when we asked this question of the plaintiffs' lawyer at oral argument.

We pause here to express our doubts about the appropriateness of litigation that is intended, whether by the friends of religion or by its enemies, to wrest the day-to-day control of our troubled public schools from school administrators and hand it over to judges and jurors who lack both knowledge of and responsibility for the operation of the public schools. The plaintiffs' high school is an urban school with 2000 students and 42 student groups. The regulatory and disciplinary problems implied by these numbers are formidable. In her diary, which is part of the record, plaintiff Gernetzke wrote: "[T]here's something exciting[:] I'm suing Kenosha Unified School District #1 . . . . The law suit is getting very interesting. KUSD is getting themselves deeper in cow dung than what they realize!" Do we really need this?

Monell v. Department of Social Services, 436 U.S. 658, 690, 694 (1978), holds that the doctrine of respondeat superior may not be used to fasten liability on a local government in a suit under section 1983. See also Cornfield by Lewis v. Con solidated High School District No. 230, 991 F.2d 1316, 1324 (7th Cir. 1993). The predominant though not unanimous view is that Monell's holding applies regardless of the nature of the relief sought. Compare, e.g., Greensboro Professional Fire Fighters Ass'n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 n. 6 (4th Cir. 1995), and Church v. City of Huntsville, 30 F.3d 1332, 1347 (11th Cir. 1994), with Chaloux v. Killeen, 886 F.2d 247, 250-51 (9th Cir. 1989); see also Reynolds v. Giuliani, 118 F. Supp. 2d 352, 363 (S.D.N.Y. 2000). We need not take sides in this case, since the plaintiffs do not argue that Monell is applicable only to their damages claim.

Respondeat superior is of course the judge-made doctrine, applicable to most tort cases but not to section 1983 cases, that makes an employer liable even if faultless for the torts its employees commit in the course of their employment. So the plaintiffs in this case cannot prevail against the school district by showing merely that the superintendent of the district and the principal of their school, acting within the scope of these officials' employment and therefore under color of state law, deprived the plaintiffs of religious liberty. They must show that the district itself, which is to say the officials or official...

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