Capeheart v. Terrell, 2012 U.S. App. LEXIS 18278 (7th Cir. 2012)

The AAUP has filed an amicus brief (.pdf) in the U.S. Court of Appeals for the Seventh Circuit in support of Loretta Capeheart, a tenured professor at Northeastern Illinois University (NEIU). Professor Capeheart sued NEIU after the provost disregarded a faculty vote electing Capeheart chair of the Justice Studies Department. Capeheart alleges that the provost refused to appoint her to the position in retaliation for her advocating on behalf of two students who were arrested by campus police while protesting CIA recruiters at the university’s job fair. Capeheart further claims that she was retaliated against because she made statements at a campus event, featuring the provost, blaming excessive administrative spending for budget problems that she claimed led to a low number of Latino faculty. In her lawsuit, Capeheart argues that the provost’s decision is in retaliation for this advocacy and speech and, therefore, NEIU has violated her First Amendment speech rights.

Relying on the Supreme Court’s 2006 decision in Garcetti v. Ceballos, the district court dismissed Capeheart’s case, ruling that her statements and advocacy were not protected because “the speech at issue was made pursuant to Capeheart’s professional responsibilities.” In addition to taking a very broad view of what are a faculty member’s “official duties,” the district court also refused to recognize an exception in the Garcetti decision specific to speech made by faculty at public colleges and universities, saying that “since Garcetti, courts have routinely held that even the speech of faculty members of public universities is not protected when made pursuant to their professional duties.” The district court concluded, therefore, that “Capeheart’s speech regarding military and CIA recruiting on campus and the university’s treatment of student protesters is not protected under the First Amendment.”

Capeheart has appealed the District Court’s decision to the Court of Appeals for the Seventh Circuit. The AAUP’s amicus brief in support of Capeheart argues that “the district court arrived at [its] distressing resolution of Professor Capeheart’s First Amendment claim by misapplying Garcetti’s “official duties” analysis and disregarding the express limits of Garcetti’s holding,” and urges the appellate court to overturn the district court’s holding. The intent of AAUP’s brief is to highlight the academic freedom and First Amendment issues implicated by the case and to shine a light on the District Court’s harmful and incorrect decision. The filed brief emphasizes that “the message of the district court’s ruling is chilling and clear: university administrators need not tolerate outspoken faculty dissent on matters of broad public concern or on the university’s institutional response to those concerns.”

Update: On August 29, 2012, the Circuit Court issued a decision vacating the district court’s judgment, remanding with instructions to dismiss Capeheart’s First Amendment retaliation claims. While the court declined to reach the issue of "official duties" under Garcetti, the vacating of the lower court’s decision implies that this decision will have no precedential value. Substantively, the court noted that Capeheart had withdrawn her demand to be installed as the department chair, which would normally deprive the federal court of jurisdiction. The court determined that Capeheart’s attempt to enjoin the use of a proposed demonstration policy was “indeed too conjectural” and the court would not decide on the “hypothetical harms of a hypothetical rule.” Further, the court found that Capeheart’s attempts to enjoin future retaliation was “unripe” because the past retaliation against her does not sufficiently demonstrate that she is likely to be retaliated against in the future.  However, Capeheart may bring a federal claim again if she is retaliated against in the future because of her speech. This should provide her some protection from administrative actions against her, including imposition of a punitive demonstrations policy.