Brandt v. Board of Educ. of City of Chicago

• Decision Date: 20 February 2007
• Docket Number: No. 06-1999.,No. 06-2573.,06-1999.,06-2573.
• Citation: 480 F.3d 460
• Parties: Michael D. BRANDT, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF CITY OF CHICAGO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

480 F.3d 460

Michael D. BRANDT, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF CITY OF CHICAGO, et al., Defendants-Appellees.

No. 06-1999.

No. 06-2573.

United States Court of Appeals, Seventh Circuit.

Argued January 4, 2007.

Decided February 20, 2007.

Rehearing and Rehearing En Banc April 2, 2007.

Irene Katherine Dymkar (argued), Chicago, IL, for Plaintiffs-Appellants.

Lee A. Lowder (argued), Chicago Board of Education Law Department, Chicago, IL, for Defendants-Appellees.

Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

This class action suit was brought on behalf of 24 eighth graders at a Chicago public school called the Beaubien Elementary School. They were disciplined for conducting a protest that they claim is privileged by the free-speech clause of the First Amendment, held applicable to state action by the Fourteenth Amendment. The suit was dismissed on the defendants' motion for summary judgment, so we state the facts as favorably to the plaintiffs as the record permits.

Every year the eighth graders choose a class T-shirt. Among the designs submitted for the 2003 contest was plaintiff Michael Brandt's; his mother is the plaintiffs' lead counsel. Brandt was in the school's program for gifted students. The program draws from all over Chicago. The other students in the school, the ones who are not in the gifted program, are local. There are some tensions between the "gifties," as the students in the gifted program call themselves, and the "tards," a derogatory term (short for "retards") sometimes applied by gifties to the other students. The gravity of those tensions is not revealed by the record.

The gifties had agreed to vote en bloc for Brandt's T-shirt design, and when it lost they smelled a rat, and submitted a protest to the principal. Some 30 designs in all had been submitted. There were 27 gifties and 72 other students in the eighth grade; and so if the 27 voted en bloc for one design and the votes of the 72 other students were scattered across the 29 other designs, the gifties' design would be almost certain to obtain a plurality of the votes. Yet when the ballots were counted, the teacher in charge of the contest announced that the vote was too close to call. She ordered a revote limited to three of the designs, one of them Brandt's; and with only two competing designs, the gifties' bloc-voting scheme failed. The teachers' practice, it turned out, was to conduct a revote among the top three contenders if the initial vote did not produce a winner with a majority, not merely a plurality, of the votes cast. The winning design unfortunately is not in the record, but apparently it was inoffensive, with an animal and a cap depicted on the front of the shirt and the names of all the eighth graders listed on the back.

The gifties were indignant. When the teacher refused to explain her runoff system or how the votes had been counted and what the tally had been, Brandt added the words "Gifties 2003" to the back of his T-shirt design; shirts incorporating the design were produced; and the gifties wore those shirts in school instead of the T-shirt that had won the contest. (A photocopy of the shirt is appended to this opinion.) They did this both to protest what they considered a rigged election and because they thought that Brandt's design represented the gifties better than the winning (and therefore the official) class T-shirt did.

In wearing the Brandt shirt, the gifties were acting in defiance of the principal of the Beaubien school, who having gotten wind of their plan had told them that wearing the shirt would show disrespect for him and create a risk to the good order of the school, presumably because it might offend the students who had voted for the winning T-shirt, although he did not make this point explicitly. An assistant principal warned that if they wore the shirt the gifties would be violating a provision (since changed) of the Chicago Public Schools' Uniform Discipline Code that prohibited students from wearing clothing with "inappropriate words or slogans," and would be punished.

Despite this warning, the gifties went ahead with their plan. But, craftily, they first wore the forbidden shirt on the day when city-wide tests were administered to public school students. They figured the school would not take disciplinary action against them on that day, lest that lower the school's average test scores (they are gifties, after all). But on each of nine subsequent days, the shirt was worn by at least one gifty, and each time all the gifties were punished by being confined to their home-room, as a result missing gym, science lab, computer lab, and after-school activities. Eventually the school summoned a "Crisis Intervention Team" from the Board of Education, and it investigated and decided that the wearing of the Brandt T-shirt by the gifties was not a safety problem (that is, would not lead to violent altercations with the other eighth graders), so the gifties were permitted to resume wearing the shirt.

The plaintiffs seek both equitable relief and damages. Originally they sought an injunction against the "inappropriate words or slogans" rule and an order that the school expunge any record of the disciplinary action taken against the gifties. Not only were the gifties ultimately permitted to wear the Brandt T-shirt, but the rule has been changed; and so the plaintiffs have dropped their request for an injunction. In any event, they're all now in high school, having graduated from the eighth grade years ago; their quest to enjoin the rule is therefore moot. Board of School Commissioners v. Jacobs, 420 U.S. 128, 129, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975) (per curiam); DeFunis v. Odegaard, 416 U.S. 312, 318-19, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam); Stotts v. Community Unit School District, 230 F.3d 989, 991 (7th Cir.2000). They could not invoke the exception, to the normal rule of mootness, for claims that are "capable of repetition, yet evading review," Roe v. Wade, 410 U.S. 113, 124-25, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), because it requires that the claim be repeatable by the same plaintiff. Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam); Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam); Majors v. Abell, 317 F.3d 719, 722-23 (7th Cir.2003); Stotts v. Community Unit School District, supra, 230 F.3d at 991; Donovan v. Punxsutawney Area School Board, 336 F.3d 211, 216-18 (3d Cir.2003)—a condition rarely satisfied other than in abortion and election cases, though it could be satisfied in a school case, see Jones v. Illinois Dept. of Rehabilitation Services, 689 F.2d 724, 727-28 (7th Cir.1982), if for example the suit was over something that had happened at the end of one school year but could happen again at the end of the next year and the plaintiff would still be in school then. But the condition is impossible to satisfy in this case, as none of the plaintiffs will ever again be gifties or subject to the superseded clothing rule.

The school has retained no records of the discipline meted out to the gifties over the T-shirt incident, which would seem to moot the other equitable claim, the claim that the record of their discipline be expunged. But they are asking that the school authorities be forbidden to tell anyone that the gifties were punished for wearing the Brandt T-shirt. There is a touch of irony in the claim, since by filing this suit the plaintiffs have spread far and wide the information concerning their conduct and the school's response to it; the suit has attracted a fair amount of publicity. See www.google.com/search?hl=en & q=gifties + beaubien + brandt, visited Jan. 26, 2007. There is further irony in requesting in a suit based on freedom of speech an order curtailing the defendants' freedom of speech. Suppose the principal of Beaubien Elementary School decided to write a memoir in which he planned to discuss the T-shirt brouhaha—maybe it was the most exciting episode in his career as a school administrator. Should he be enjoined from doing that? He could be enjoined, as it is a myth that all injunctions against free speech are barred by the First Amendment as "prior restraints," see, e.g., Madsen v. Women's Health Center, Inc., 512 U.S. 753, 762-66, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994); Snepp v. United States, 444 U.S. 507, 510 n. 3, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980) (per curiam); Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 389-90, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973); Near v. Minnesota, 283 U.S. 697, 715-16, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); United States v. Progressive, Inc., 467 F.Supp. 990 (W.D.Wis.), appeal dismissed, 610 F.2d 819 (7th Cir.1979), but only if there was evidence that the defendants were likely to conduct a vendetta against the gifties—were trying to block their access to college or to good jobs by spreading the word that they had been punished for wearing an unofficial T-shirt. The plaintiffs do not claim to have any evidence of so improbable a plot.

Sufficient unto the day is the evil thereof. Any defendants who in a spirit of vengeance spread the word that the gifties were disciplined will be vulnerable, at least in principle, to a suit for defamation unless they make clear that the discipline that they imposed had been disapproved by the Board of Education's Crisis Intervention Team. Conceivably they would be vulnerable to being sued for committing other torts as well, such as depicting a person in a false light or interfering with his actual or prospective contracts, for example with a possible employer. Of course no college or employer would be likely to be much concerned with mild discipline meted out to an eighth grader. An air of unreality clings to every aspect of this litigation.

But we must trudge on, and...