Yano v. City Colleges of Chicago et al

Filing 155

MEMORANDUM Opinion and Order. Signed by the Honorable James B. Zagel on 7/19/2013. (ep, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KYUNG HYE YANO, individually
and as Guardian/Parent/Next Friend of
S.Y., a Minor,
No. 08 CV 4492
Judge James B. Zagel

Plaintiff,
v.
CITY COLLEGES OF CHICAGO, et al.
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ motion for summary judgment on Counts III (‘class-ofone’ equal protection claim) and IV (First Amendment retaliation claim) of the Amended
Complaint. This is the second installment of my ruling on Defendants’ motion for summary
judgment. On March 13, 2013, I granted summary judgment for Defendants on Counts I (Title
IX gender discrimination), II (Title VI national origin discrimination), VI (defamation per se),
and VIII (defamation per quod).1 I denied summary judgment on Count X (intentional infliction
of emotional distress) for Defendants Lancki and El-Maazawi, but granted it with respect to all
other Defendants. I withheld ruling on Counts III and IV so that the parties could brief the issue
of qualified immunity.
With the supplemental briefing completed, I now grant the motion for summary judgment
on Counts III and IV.
I.

1

STANDARD OF REVIEW

I incorporate my March 13, 2013 opinion and order herein by reference.

Qualified immunity protects governmental actors “from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A
right is clearly established when “the contours of the right are sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987). Stated differently, a government official is entitled to qualified immunity
if at the time of the alleged unconstitutional conduct, the law was not sufficiently developed such
that the official had “fair warning” that his conduct amounted to a constitutional violation.
United States v. Lanier, 520 U.S. 259, 270-71 (1997).
At the summary judgment stage, the qualified immunity inquiry involves two questions:
(1) has Plaintiff demonstrated a genuine material fact dispute as to whether the defendant
violated her substantive constitutional rights?; and (2) was the right clearly established at the
time of the alleged violation? I may address these questions in any order. Pearson v. Callahan,
555 U.S. 223, 236 (2009).
II.

ANALYSIS
A.

COUNT III

Count III alleges a “class of one” equal protection claim against all Defendants. A “class
of one” claim does not involve discrimination based on class membership or the denial of a
fundamental right; it goes to the basic right to be free from arbitrary or malicious “singling out”
by the government. See generally Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
To succeed on her “class of one” claim, Plaintiff must show that Defendants intentionally
discriminated against her and/or S.Y., and that there is no rational basis for Defendants’ actions,
Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 913 (7th Cir. 2012) (en banc) (Wood, J.,

2

dissenting), or that Defendants should have known that their discriminatory actions lacked
justification, id. at 889 (Posner, J., lead opinion); see also Sung Park v. Indiana University
School of Dentistry, 692 F.3d 828, 833 (7th Cir. 2012).
I first address the substantive constitutional violation. I find that Plaintiff has made an
adequate showing that Defendants Lancki and El-Maazawi intentionally discriminated against
S.Y. with no rational basis, and therefore violated her Fourteenth Amendment right to equal
protection. Id. The record suggests that both Lancki and El-Maazawi engaged in abusive
treatment toward S.Y. that had no conceivable connection to pedagogy, discipline, or student
safety. See Mathers v. Wright, 636 F.3d 396, 400-01 (8th Cir. 2011) (finding student adequately
stated a “class of one” equal protection violation where teacher’s alleged discriminatory conduct
“did not arise from educational or safety concerns, but from personal animus against [the
student]”); see also Sung Park, 692 F.3d at 833, Martin v. Shawano-Gresham School Dist., 295
F.3d 701, 712-13 (7th Cir. 2002) (“class of one” claims are cognizable in the public school
context based on irrational discrimination of students by public school officials).
There is evidence that Lancki subjected S.Y. to arbitrary harassment: she repeatedly
called S.Y. a “cheater,” derogatorily referred to her as a “little girl,” accused S.Y. of “slander,”
attempted to turn the class against her, and possibly even tampered with one of S.Y.’s tests.2
Truman College’s own investigation confirmed that Lancki inappropriately singled out S.Y.
from the rest of her classmates, which resulted in Lancki’s suspension. There is sufficient
evidence that Lancki’s conduct was fueled by malice (the conduct speaks for itself), and any
reasonable teacher would know that singling out a student for public humiliation in response to a
parent’s (facially legitimate) complaint is unjustifiable.

2

Defendants’ suggestion that Lancki’s own First Amendment right to academic freedom is somehow implicated in
this case is difficult to take seriously.

3

As for Defendant El-Maazawi, much of the conduct of which Plaintiff complains—eating
and drinking during labs, listening to his headphones, flagrantly ignoring basic laboratory safety
precautions—cannot serve as the basis for a “class of one” claim because it was not directed
specifically at S.Y (and much of it is not serious enough to offend the federal constitution).
However, there is evidence that El-Maazawi specifically targeted S.Y. for discriminatory
treatment by following her around campus in a threatening manner, possibly applying a different
grading system to her exams, refusing to meet with her during office hours, adopting a
flamboyant procedure for handing back exams designed to humiliate S.Y., treating her with open
hostility in and outside of the classroom, and, once again, losing an exam under suspicious
circumstances. El-Maazawi’s singling out of S.Y. in these ways was not legitimately tied to his
duties as a professor, but instead appears to have been driven by personal irritation with having
to teach S.Y. and a desire to lash out in response. See Del Marcelle, 680 F.3d at 889 (class of
one claims target “state actors who knew or should have known that they had no justification,
based on the public duties, for singling out [the plaintiff] for unfavorable treatment – who acted
in other words for personal reasons, with discriminatory intent and effect” (emphasis in
original)). I find that El-Maazawi’s conduct, considered in the aggregate, is sufficiently severe
to amount to a constitutional violation.
Defendants raise several arguments as to why, notwithstanding the above conduct,
Plaintiff’s cannot establish the underlying constitutional violation. First, Defendants argue that
the claims in this case all arise in the classroom context, an environment in which teachers are
constantly involved in “discretionary decisionmaking based on a vast array of subjective,
individualized assessments.” Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 603 (2008). In
Engquist, the Supreme Court refused to recognize a “class of one” equal protection claim in the

4

public employment context. The employer-employee relationship is so predominated by
“subjective and individualized” assessments, the Court determined, that it was impractical for
courts to police against legitimate versus illegitimate instances of differential treatment. Id. at
604. Defendants argue that like the employer-employee relationship, the teacher-student
relationship is so pervaded by subjective and individualized determinations—the need to tailor
teaching methods to fit individual learning styles, the legitimate need to discipline disruptive
students, etc.—that teachers broad discretionary authority should not be subject to “class of one”
scrutiny. In other words, differential treatment is an inherent part of education, and thus “class
of one” claims are a “poor fit” for the classroom setting. See Engquist, 553 U.S. at 605.
The Eighth Circuit Court of Appeals considered Engquist’s applicability to the classroom
context in Mathers v. Wright, 636 F.3d 396, 400-01 (8th Cir. 2011). The court recognized that
teachers, like public employers, must be allotted a broad degree of discretionary authority in
carrying out their public duties given subjective assessments that take place in the classroom. Id.
However, the Court found that discriminatory treatment of students that has no conceivable
connection to “educational or safety concerns…exceed[s] the scope of professionally acceptable
choices,” and is not insulated from “class of one” claims. Id. at 401. Essentially, the Mathers
court found that unlike the public employment context, it was practicable (and necessary) for
courts to distinguish between legitimate and illegitimate forms of differential treatment in the
classroom setting.
I think Mathers has it right. First, Engquist expressly limited itself to the public
employment context, so it is not controlling precedent for the classroom. Engquist, 553 U.S. at
607. Second, although the teacher-student relationship involves a “vast array of subjective,
individualized assessments,” and it would be unrealistic (and highly undesirable) to inject

5

constitutional scrutiny into the vast majority of these assessments, there is good reason to
preserve a limited window for “class of one” claims in the classroom setting post-Engquist. The
Court’s determination that “class of one” claims are a “poor fit” in the public employment
context was based largely on its finding that such claims are incompatible with basic principles
of at-will employment. Engquist, 553 U.S. at 606-07. However, there is no parallel “at-will”
principle in the classroom setting—teachers are not free, for example, to terminate their teaching
duties based on negative personal feelings toward individual students. So while there is an
obvious parallel interest in preserving the broad discretionary authority of teachers, “class of
one” claims do not conceptually clash with the student-teacher relationship in the same way they
might with the employer-employee relationship.
It is true that, like public employees, students are sometimes afforded diminished
constitutional protections so that countervailing public interests may be advanced. See, e.g., New
Jersey v. TLO, 469 U.S. 325, 341 (1985) (searches of students on school grounds by public
school officials are governed by a reasonableness standard rather than probable cause given “the
substantial need of teachers and administrators for freedom to maintain order”); Tinker v. Des
Moines Independent School Dist., 393 U.S. 503, 509 (1969) (school officials may restrict
otherwise protected speech upon a showing that engaging in the speech would “materially and
substantially interfere with the requirements of appropriate discipline in the operation of the
school”). But the government’s role and the corresponding public interests are very different in
the employment versus the school setting. When the government acts as proprietor and manager
of its internal operations (as in the public employment context), there is an overriding public
interest in efficiency, integrity and discipline, so that the day-to-day operations of the
government can be executed without needless delay and cost to the public. See generally Waters

6

v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion) (“[T]he government as employer
indeed has far broader powers than does the government as sovereign”); Connick v. Myers, 461
U.S. 138, 150-51 (1983). The constitutional rights of public employees may be diminished when
it is necessary to advance these interests and protect the basic functioning of government.
When the government acts as educator, by contrast, it is said to act in loco parentis—a
role in which the safety, wellbeing, and intellectual cultivation of students takes on primary
importance.3 To succeed, a “class of one” claim brought by a student against a teacher would
have to train on conduct that is harmful to these interests—i.e. arbitrary harassment that
negatively impacts the student’s emotional wellbeing and ability to succeed in the classroom. So
long as teachers’ legitimate exercise of professional discretion is shielded, there are no apparent
countervailing interests to which a student’s right to be free from arbitrary harassment by
government officials should give way.
So Plaintiff has made an adequate showing that Lancki and El-Maazawi violated S.Y.’s
constitutional right to equal protection because their conduct bears no connection to a legitimate
discretionary function. Mathers, 636 F.3d at 400. But the same cannot be said of Defendant
Lopez. Plaintiff’s claims against Lopez amount to the following: 1) Lopez constantly told S.Y.
to raise her voice and criticized her pronunciation (and did not do so with other students), which
led to a mid-term grade of “B” (but a final grade of “A”); and 2) Lopez spoke disparagingly of
S.Y. to other professors. Lopez’s criticism of S.Y. is precisely the type of legitimate,
discretionary classroom conduct that federal courts ought to have no involvement in regulating.
To clear the summary judgment hurdle as to Defendant Lopez, Plaintiff would have to
demonstrate far more extreme conduct, or at least make some kind of specific showing that no
3

The in loco parentis concept probably does not apply to the same degree in the college setting as K-12 education.
College students, it would seem, have greater constitutional rights than primary school students as the government
acts more purely as educator at the college level, rather than educator/guardian.

7

other student was treated the same as S.Y. Plaintiff has demonstrated neither. As for Lopez’s
comments to other professors, she had a right to express her views of S.Y. privately to other
faculty members, and Plaintiff has not demonstrated how that resulted in actual injury. Summary
judgment is GRANTED on Count III with respect to Defendant Lopez.
Defendants next argue that Plaintiff’s “class of one” claims fail because Plaintiff has not
identified any similarly situated students who were treated more favorably than S.Y. Some
conduct is so out-of-the ordinary, or “so clearly suggests harassment” that a plaintiff need not
point to similarly situated individuals who were not subject to the harassment in order to state a
“class of one” claim. Geinosky v. City of Chicago, 675 F.3d 743, 748 (7th Cir. 2012). I think
that principle is applicable, in perhaps a more limited form, at the summary judgment stage as
well. A reasonable jury could infer, based on Defendant Lancki and El-Maazawi’s conduct
alone, that no other students were subject to the type of arbitrary singling out that S.Y.
experienced in their classrooms.
I do not think the same can be said for the other Defendants. The claims against
Defendants Rahman, Roeger and Watson are, with a few exceptions, based on their failure to
adequately respond to Plaintiff’s complaints.4 It is very difficult to make out a “class of one”
claim based on nonfeasance.5 In the context of this case, I would need to see some evidence that
these defendants responded differently to Plaintiff’s complaints then they have to the complaints
of other parents. Plaintiff has put forth no such evidence and as such summary judgment is
GRANTED for Defendants Rahman, Roeger and Watson with respect to Count III. The conduct
4

One exception is Plaintiff’s allegation that Roeger kicked Plaintiff out of the building after she peered into a
classroom to observe S.Y. taking an exam. Again, I would need to see some evidence that other parents were
afforded greater privileges in this context before a class of one claim could get off the ground. The question is not
simply whether other students have parents—as Plaintiff, strangely, suggests—the question is whether parents who
tried to intervene on behalf of their child in one way or another were treated differently than Plaintiff.
5
The affirmative acts taken by these Defendants—for example, Roeger’s loudly “slurping a soda”—do not, by any
stretch of the imagination, offend the federal constitution.

8

alleged against Defendant Dundzila—comments made about S.Y. in an email—falls short of
even stating a “class of one” claim. Summary judgment is GRANTED for Defendant Dundzila
with respect to Count III.
Now the question is whether Defendants Lancki and El-Maazawi are entitled to qualified
immunity. The trick with this case—as with most qualified immunity questions—is to settle on
the proper degree of abstraction or generality in determining whether the right at issue was
“clearly established.” See generally Anderson, 500 U.S. 226. The general right to be free from
arbitrary singling out by the government was certainly clearly established by the time the
conduct at issue in this case occurred. See, e.g., Olech, 528 U.S. 562. But to fairly apply
Anderson’s directive that constitutional rights not be examined at too high a level of abstraction,
483 U.S. at 689, we must examine, I think, the extent to which the contours of the “class of one”
right had been defined in the classroom setting.6
Plaintiff has not pointed to a single case that was on the books in the summer of 2007
involving a “class of one” claim brought by (or on behalf of) a student against a teacher based on
differential treatment in the classroom. As such, I do not think it can be said that Defendants had
“fair warning” that their alleged conduct amounted to a constitutional violation. Lanier, 520
U.S. at 270-71. Surely, Plaintiff would argue that my determination runs afoul of Hope v.
Pelzer, in which the Supreme Court made clear that “officials can still be on notice that their
conduct violates established law in novel factual circumstances.” 536 U.S. 730, 741 (2002). But,
6

This is where I break company with Mathers. I find the qualified immunity analysis in that case (636 F.3d at 40102) difficult to square with Anderson’s emphasis on fact specificity over abstract rights. 483 U.S. at 639. As a
general rule, if a court finds itself having to say “we see no reason why something was not clearly established,” it is
a good sign that “the contours of the right” at issue were not adequately defined (otherwise the court would have an
easier time, it would seem, pointing to positive authority to demonstrate that the right at issue was clearly
established). The Mathers court did point to Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), to support its
position that the right to be free from arbitrary singling out in the classroom when such conduct exceeds the scope of
professionally acceptable choices is clearly established. I do not think Nabozny provides such support in the “class
of one” context, since the discrimination at issue in that case involved traditional discrimination based on
membership in a “definable minority.” See Nabozny, 92 F.3d at 457.

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as the Supreme Court suggested, I need to see a case with at least “materially similar” (if not
“fundamentally similar”) facts to find, without running afoul of Anderson, that a right is clearly
established for qualified immunity purposes. Try as I might, I can find no such case.7
“Class of one” claims typically arise in the law enforcement context. As far as I can tell,
the pre-2007/2008 “class of one” cases that arose in the school setting were limited to claims of
differential forms of discipline between similarly situated students. See, e.g., Martin, 295 F.3d
701. So while it may be that a reasonable school official had fair warning in the summer of 2007
that suspending Student A for the same conduct for which Student B received detention could
amount to a constitutional violation under a “class of one” theory, I do not think that translates to
fair warning that Lancki and El-Maazawi’s conduct—illegitimately singling out S.Y. for
differential treatment in and outside of a college-level course—could rise to a constitutional
violation.
Let me be clear: no reasonable person in Defendant Lanki or El-Maazawi’s position
could believe that their conduct was justified. But that establishes the underlying constitutional
violation only. Post-Harlow (which dropped the subjective inquiry), the qualified immunity
question is an objective inquiry into the state of the law. 457 U.S. 800, 818-19. The question is
not whether a reasonable defendant knew his actions were wrongful; the question, really, is
whether the law was adequately developed such that we can fairly impute upon the defendant
knowledge that his actions amounted to a constitutional wrong. Post-Mathers, the answer to that
question may well be “yes”; pre-Mathers, it appears to be “no.”
Defendant Lancki and El-Maazawi’s motion for summary judgment on Count III is
GRANTED on qualified immunity grounds.
7

The need for “materially similar” facts arguably takes on heightened importance for “class of one” claims, where
context matters to a greater degree than other types of equal protection violations. See Hanes v. Zurick, 578 F.3d
491, 495 (7th Cir. 2009).

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B.

COUNT IV

Count IV alleges First Amendment retaliation against all Defendants. To establish a
prima facie case of First Amendment retaliation, Plaintiff must demonstrate (1) she (or S.Y.)
engaged in activity protected by the First Amendment, (2) she (or S.Y.) suffered a deprivation
that would likely deter First Amendment activity in the future, and (3) the First Amendment
activity was at least a motivating factor in the defendant’s decision to take the retaliatory action.
Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008). Plaintiff alleges that Defendant Lancki’s
hostile conduct toward S.Y. resulted from Plaintiff’s legitimate complaints about possible
tampering with S.Y.’s Quiz II scantron sheet. Plaintiff alleges that El-Maazawi’s hostile conduct
toward S.Y. resulted from S.Y.’s legitimate complaints about safety conditions in the laboratory.
Defendants respond that 1) the speech at issue was not protected; and 2) even if it was,
Defendants are entitled to qualified immunity because it was not clearly established that the
speech was protected.
Before plunging into the analysis, it is helpful to review some First Amendment basics.
The First Amendment provides, “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press, or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.” That is pretty categorical language. Nevertheless, the Supreme Court
has identified certain types of speech that are of such low social value that they are completely
exempt from First Amendment protection, including incitement, Brandenburg v. Ohio, 395 U.S.
444 (1969), “fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), and
obscenity, Miller v. California, 413 U.S. 15 (1973). Other forms of speech have been afforded
diminished protection by the Supreme Court due to their low (but not entirely negligible) social
11

value, including commercial speech. Central Hudson Gas & Electric Corp. v. Public Service
Commission, 447 U.S. 557 (1980). If speech is not unprotected—meaning it does not fall within
one of the narrow exemptions carved out by the Supreme Court—then it is protected.
Not all protected speech is protected equally. Speech on public issues, or “matters of
public concern,” occupies the “highest rung of the hierarchy of First Amendment values, and is
entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (internal citations
and quotation omitted). That does not mean, however, that speech on matters of private concern
is unprotected. See Id. at 147 (“We in no sense suggest that speech on private matters falls into
one of the narrow and well-defined classes of expression which carries so little social value, such
as obscenity, that the State can prohibit and punish such expression by all persons in its
jurisdiction”); United Mine Workers v. Illinois State Bar Association, 389 U.S. 217, 223 (1967)
(“The First Amendment does not protect speech and assembly only to the extent it can be
characterized as political. Great secular causes, with smaller ones, are guarded”). So while
matters of purely private concern are surely subject to a lower level of protection than speech on
public issues, the government may not ban private speech, nor may it retaliate against it with
impunity by claiming that the speech did not concern anyone other than the speaker.
There is one context in which purely private speech receives no First Amendment
protection. “[W]hen a public employee speaks not as a citizen upon matters of public concern,
but instead as an employee upon matters only of personal interest,” there is generally no First
Amendment protection available if the government (as employer) takes an unfavorable personnel
action against the employee in reaction to the speech. Connick, 461 U.S. at 147. Again, this is
not because speech on matters only of personal interest is unprotected at large. Rather, it is a
functional compromise devised by the Supreme Court to “balance between the interests of the

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[employee], as a citizen, in commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public services it performs through its
employees.” Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
The functional compromise hashed out in Connick/Pickering does not apply to student
speech. Rather, when students speak independently in the school setting (i.e. not through a
forum subsidized by the school, such as a school newspaper, see Hosty v. Carter, 412 F.3d 731,
734 (7th Cir. 2005)), that speech is entitled to regular First Amendment protection so long as it
does not “materially and substantially” disrupt the work and discipline of the school. Tinker v.
Des Moines Independent Community School Dist., 393 U.S. 503 (1969). So while student speech
in school that relates solely to matters of private concern is subject to lower protections than
speech on matters of public concern (meaning school officials would have broader latitude in
regulating private speech), private speech cannot be banned in public schools (absent the
“material and substantial” showing) and public school officials certainly cannot retaliate against
students for speech related solely to matters of individual concern.
I do not think there can be any real question that Plaintiff and S.Y.’s communication of
their grievances to Defendants was protected speech. Even if the speech at issue is construed as
relating solely to matters of private concern, which I do not think is necessarily the case (surely
there is some public interest in a college’s faithful observance of basic laboratory safety
precautions, for example), it was entitled to some degree of First Amendment protection.8 Cf.
Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009) (prisoner speech on matters of purely
private concern is protected under the First Amendment). There is ample evidence that the
negative treatment S.Y. received at the hands of Lancki and El-Maazawi resulted from the
8

Although Plaintiff does not make the argument, I would suggest that Plaintiff and S.Y.’s complaints were also
protected under the Petition Clause of the First Amendment, an area in which purely private concerns are clearly
protected. See Eastern Railroad Presidents Conference et al. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961).

13

speech, and I believe Defendants’ conduct was severe enough to likely deter someone in
Plaintiff’s and S.Y.’s position from lodging future complaints. Once again, Plaintiff has made an
adequate showing of the underlying constitutional violation.
Defendants, however, are entitled to qualified immunity. In Landstrom v. Illinois Dept.
of Children and Family Services, 892 F.2d 670, 679 (7th Cir. 1990), the Seventh Circuit
ostensibly held that the Pickering/Connick “public concern” test somehow applies to private
citizen speech. Specifically, the Court determined that the complaints of parents to school
officials about a coach’s conduct toward their child, a grammar school student, was not protected
because it did not touch upon a matter of public concern.
I am unsure about the reach of the holding of Landstrom. The “delicate balance”
between a citizen’s right to speak and the employer’s need to effectively provide government
services—the balancing act out of which the public concern test arises—seems inapplicable in
the context of a private citizen complaining to public officials. Indeed, later cases suggest that
the Court in Landstrom did not intend to extend the public concern test beyond the public
employment context. See, e.g., Bridges, 557 F.3d 541; Watkins v. Kasper, 599 F.3d 791, 795-96
(7th Cir. 2010) (declining to extend the public concern test to speech by prisoners who are
employed by the prison). It seems clear that if prison officials cannot retaliate against inmates
for voicing purely private grievances, school officials cannot retaliate against parents and
students for doing the same.
As the district court for the Central District of Illinois suggested in Wysocki v. Crump,
838 F.Supp.2d 763, 770 (C.D. Ill. Dec. 20, 2011), however, until the Seventh Circuit revisits the
issue of whether a parent’s complaint to school officials is protected speech, I cannot find that
Defendants’ violated clearly established law insofar as their alleged retaliatory conduct was in

14

response to Plaintiff’s complaints. And in the absence of any authority to suggest that student
complaints to school officials on matters of private concern might receive greater First
Amendment protection than parent complaints, Landstrom effectively obfuscates the contours of
S.Y.’s rights to lodge a grievance with school officials such that Defendants Lancki and ElMazaawi are entitled to qualified immunity for all conduct alleged under Count IV.9
Plaintiff has not established the underlying constitutional violation as to the remaining
Defendants. I do not believe the conduct alleged against the other Defendants amounts to a
constitutional deprivation that would likely deter future protected First Amendment activity, and
even if it does the same qualified immunity analysis would pertain.

ENTER:

James B. Zagel
United States District Judge

DATE: July 19, 2013

9

I encourage Plaintiff to appeal my ruling so that the Seventh Circuit has an opportunity to clarify the contours of
the speech rights at issue in this case.

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