Dishnow v. School Dist. of Rib Lake, 95-2563

• Decision Date: 28 February 1996
• Docket Number: No. 95-2563,95-2563
• Citation: 77 F.3d 194
• Parties: 107 Ed. Law Rep. 98, 11 IER Cases 770 Michael DISHNOW, Plaintiff-Appellee, v. SCHOOL DISTRICT OF RIB LAKE, Ramon Parks, and Paul Peterson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 194

77 F.3d 194

107 Ed. Law Rep. 98, 11 IER Cases 770

Michael DISHNOW, Plaintiff-Appellee, v. SCHOOL DISTRICT OF RIB LAKE, Ramon Parks, and Paul Peterson,

Defendants-Appellants.

No. 95-2563.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 6, 1995.

Decided Feb. 28, 1996.

Daphne Webb, Lynn Bodie (argued), Stafford, Rosenbaum, Rieser & Hansen, Madison, WI, for Plaintiff-Appellee.

Michael J. Morse, Susan M. Love (argued), Wanda L. Hurr, Brent P. Benrud, Von Briesen, Purtell & Roper, Milwaukee, WI, for Defendants-Appellants.

Before POSNER, Chief Judge, and WOOD, Jr., and EVANS, Circuit Judges.

POSNER, Chief Judge.

Michael Dishnow was employed as a guidance counselor by a public high school in Rib Lake, a small town in northern Wisconsin. He brought this suit under 42 U.S.C. § 1983 against the school district, the superintendent of the school district, and the principal of the high school, claiming that they had fired him in retaliation for his exercising his First Amendment right to free speech. The jury agreed and returned a verdict in his favor of almost $400,000, of which some 60 percent was for humiliation and injury to reputation and most of the rest for lost wages. The judge cut down the award for humiliation and injury to reputation by 90 percent. The defendants have appealed. Dishnow has abandoned his cross-appeal, in which he sought restoration of the damages that the district judge had cut.

Dishnow had presented evidence that he was fired because he had written certain articles, which the school board considered scandalous or disreputable, for a local newspaper, plus a letter to the editors of the newspaper which had been published and which the board also reprobated; because he had tipped off the local media to a violation by the board of the state's open-meetings law; and because he had publicly and indeed vocally opposed the removal from the school library of the novel Forever by Judy Blume. The defendants presented evidence that Dishnow had been fired not because of any of these things but because he had committed fourteen acts of insubordination or unprofessional conduct, including referring to the principal at a faculty meeting as the "god damned administration," using the school's copying machine in violation of a school rule forbidding its use between 8:05 a.m. and 8:40 a.m. on school days, forgetting an appointment to address a class, and telling the school's librarian (in the presence of students) to "get fucked." The jury considered the fourteen-count indictment against Dishnow pretextual. It had every reason to do so. The prohibited use of the copying machine was particularly transparent, as no one else had ever been called on the carpet, let alone fired, for this peculiarly venial sin. The altercation with the librarian was mutual and both used the word "fuck"; Dishnow's one-day suspension (the librarian received merely a written reprimand) was surely all the punishment a sane administration would have meted out for the offense.

The defendants take a different tack, arguing that the articles and some of Dishnow's other expressive activities as well were not even prima facie protected by the First Amendment because they did not touch on matters of "public concern." This part of the defendants' submission is permeated, indeed vitiated, by a misunderstanding of the application of the First Amendment to public employees. We tried to dispel this misunderstanding in Eberhardt v. O'Malley, 17 F.3d 1023 (7th Cir.1994), a decision that the defendants have carefully refrained from citing in either of their briefs, though it is cited and discussed at length by their opponent. We explained that when the Supreme Court in its cases establishing and bounding the rights of public employees to exercise free speech limited those rights to speech on matters of "public concern," they did not mean matters of transcendent importance, such as the origins of the universe or the merits of constitutional monarchy; they meant matters in which the public might be interested, as distinct from wholly personal grievances--which whether or not protected by the First Amendment are too remote from its central concerns to justify judicial interference with the employment relation, Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983)--and casual chit-chat, which is not protected by the First Amendment at all. Swank v. Smart, 898 F.2d 1247, 1251 (7th Cir.1990). When Dishnow spilled the beans to the media about the school board's violation of state law, or wrote articles for a local newspaper on such topics as the sharing of household tasks by a working couple, he was participating in a public dialogue on matters of interest to the public, and no more was required to place his speech, prima facie, within the protection of the First Amendment. That the public was not large, that the issues were not of global significance, and that Dishnow's participation was not (we mean no disrespect) vital to the survival of Western civilization did not place his speech outside the orbit of protection. We are troubled that the defendants appear not to accept or even understand this fundamental point about American civil liberties.

True it is that speech which could not be prohibited by the state if uttered by a private person may be a lawful basis for discharge or other discipline when uttered by a public employee. Connick v. Myers, supra, 461 U.S. at 147, 103 S.Ct. at 1690. That is why we have used the term "prima facie" protection. A proper analysis of a public employee's First Amendment claim proceeds in a sequence of three steps. The first is to decide whether his speech, were it uttered by someone who was not a public employee, would be protected. If not, the case is at an end. If yes, the second step is to decide whether the speech falls within the category of personal employee grievances that the Supreme Court told us in Connick are not worthy of judicial intervention. If so, the case is at an end. But, if not, if, that is, as is clearly Dishnow's case, the speech concerns public issues rather than merely a personal grievance, we proceed to the third step, which involves deciding whether the public employer had a convincing reason to forbid the speech. If so, the protection is withdrawn. E.g., id. at 150, 103 S.Ct. at 1690-91; Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Yoggerst v. Hedges, 739 F.2d 293, 295 (7th Cir.1984).

The defendants, because they do not understand the structure of the right and thought that Dishnow had failed at the threshold, did not ask the judge to find that his public utterances, though they were neither mere chit-chat nor personal grievances, but instead were addressed to matters of public concern, were so inimical to the maintenance of a proper educational atmosphere as to be constitutionally permissible grounds for discipline or discharge. At trial the defendants did elicit a bit of testimony that Dishnow's utterances had impeded the school's educational mission. Evidently this testimony did not impress the jury much, but in any event the balancing of the interest in freedom of expression against the employer's interests is to be done by the judge, not the jury. Waters v. Churchill, --- U.S. ----, ----, 114 S.Ct. 1878, 1884, 128 L.Ed.2d 686 (1994); Connick v. Myers, supra, 461 U.S. at 148 n. 7, 150 n. 10, 103 S.Ct. at 1691 n. 7, 1692 n. 10; Wright v. Illinois Dept. of Children & Family Services, 40 F.3d 1492, 1499-1500 (7th Cir.1994); Berger v. Battaglia, 779 F.2d 992, 998 (4th Cir.1985). By failing to ask the judge to balance the interests, the defendants waived their Connick defense. They tell us, too late, that in an article in which Dishnow was reminiscing about his youth he encouraged his high-school charges to drink and smoke. The article in question, ominously entitled "The Rebel Within," was part of a...