Kugler v. Board of Education of the City of Chicago
Filing
72
MEMORANDUM Opinion and Order. Signed by the Honorable John Z. Lee on 8/18/2017: Kugler's motion for a preliminary injunction 6 is granted in part and denied in part. The parties are directed to meet and confer and to provide the Court with a proposed order within seven days of this Order consistent with the Court's holding herein. [For further detail see attached order.] Notices mailed. (psm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN KUGLER,
Plaintiff,
v.
BOARD OF EDUCATION OF THE
CITY OF CHICAGO,
Defendant.
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16 C 8305
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiff John Kugler (“Kugler”) brought this action against the Board of
Education of the City of Chicago (“Board”), alleging that the Board, by imposing a
set of restrictions on his access to Chicago Public Schools (CPS) property, retaliated
against him for speech protected under the First Amendment and otherwise
violated his First Amendment rights. He now moves for a preliminary injunction
setting aside the restrictions. The Court held a two-day hearing on Kugler’s motion.
For the reasons that follow, Kugler’s motion for a preliminary injunction [6] is
granted in part and denied in part.
Background
John Kugler is a field representative for the Chicago Teacher’s Union (CTU)
and a parent of two children who attend Benito Juarez Community Academy
(“Juarez Academy”), a CPS school. Prelim. Inj. Hr’g Tr., Nov. 21, 2016, at 7:9–10;
44:13, ECF No. 54. He has served as a CTU field representative since 2010. Id. at
6:25–7:1. He has been an outspoken critic of CPS policies, frequently writing online
articles in blogs such as Substance News and Daily Kos. See generally id. at 57:1–
59:25. As a CTU field representative, he frequently participates in the grievance
process by representing teachers who are members of the union. Id. at 9:2–7. As
part of this process, Kugler has met with principals and teachers at various CPS
schools and participated in grievance hearings and disciplinary meetings with
hearing officers at the Board’s offices. Id. at 9:2–7, 10:25–11:12. In his capacity as
a CTU field representative, Kugler prides himself on serving as a strong-willed
advocate for teachers. See id. at 10:4–24.
Recently, however, Kugler engaged in several actions as a union
representative and CPS critic that prompted the response from the Board giving
rise to the controversy in this case.1 First, in December 2014, Kugler participated
in a grievance hearing at Manley Career Academy (“Manley”) at which Principal
Trista Harper (“Harper”) was present.
See generally id. at 21:14–22:15; 86:17–
89:12. During the course of the hearing, Kugler yelled at Harper and exhibited
what she considered to be an intimidating tone and body language. Id. at 87:9–19.
When Harper asked him to act professionally and look at her when speaking to her,
Kugler replied, “I don’t have to look at you,” and asked, “I mean, who are you?” Id.
at 87:24–88:3. He then banged his fist on a desk and said, “What are you going to
do about it?” Id. at 88:6–8. Harper, who was upset and felt threatened, “thought at
the time maybe [she] should get security because [she] thought that maybe
Based on Kugler’s testimony and the representations in his briefing, the Court does
not understand Kugler to dispute the incidents summarized herein. See, e.g., id. at 22:14–
15, 22:20–21, 24:6–10, 29:9, 31:18–19, 32:11–23; 71:11–23; 76:3–4, 77:17–21.
1
2
[Kugler] . . . wanted to fight or something,” having never experienced such conduct
in a professional setting. Id. at 88:13–15, 89:1–10. She reported Kugler’s conduct to
the Board’s law department. Id. at 88:23–24. Following the meeting, she “started
to receive an abundance of email harassments” from Kugler. Id. at 89:20–22.
In September 2015, Kugler represented another Manley teacher at a
grievance hearing at one of the Board’s offices. See generally id. at 22:16–28:22,
90:15–91:24.
Harper participated by phone.
Id. at 91:1.
During the hearing,
Kugler interrupted Harper while she was speaking and said that he did not have to
respect her. Id. at 91:4–14. He then began yelling and screaming at a hearing
officer. Id. at 91:15–16. Unable to calm Kugler, the hearing officer was forced to
conclude the hearing. Id. at 91:20–24.
Kugler’s disruptive conduct at grievance hearings continued. In March 2016,
Kugler attended a grievance hearing at one of the Board’s offices in which he
screamed and yelled at Amanda Smith, a CPS project manager who participated in
grievance hearings.
See generally id. at 111:13–25, 114:7–118:19.
During the
course of the meeting, Kugler raised his hand toward her and pointed at her face,
id. at 115:8–9, told her to “shut up,” id. at 32:12, and insisted she did not have to
speak, id. at 115:11–12. Smith felt intimidated and “did not know how far he would
take it” or “what he would say or do next.” Id. at 115:14, 116:13–14. When she
approached Kugler after the meeting to ask him not to speak to her as he did in the
future, Kugler “went off” and began screaming, banging on a desk, and yelling. Id.
at 116:17–18, 117:2–3. “[S]haking” and unsure what Kugler would do next, Smith
3
left the room to prevent the situation from escalating further.
Id. at 117:7–9,
117:23–25.
Following the March 2016 hearing, the Board and the CTU communicated
with each other about Kugler’s conduct and agreed on several steps toward
remedying it, but they were unable to reach a final solution. See generally Prelim.
Inj. Hr’g Tr., Nov. 22, 2016, Vol. 2B, at 321:25–328:13, ECF No. 56. The Board
discussed two options with the CTU: requiring another CTU representative to
accompany Kugler to grievance hearings, id. at 323:12–18, and providing Kugler a
“last-chance agreement” to give him a final opportunity to change his behavior, id.
at 323:19–25.
The CTU evidently had a “negative” reaction to the first option,
suggesting that “it was too expensive . . . for [it] to do that, even for a brief period of
time.” Id. at 323:15–18. Later, however, the CTU did not object to the requirement
that Kugler be accompanied by someone for a specific hearing. Id. at 328:10–13.
With respect to the second option, the CTU rejected the Board’s suggestion, saying
“they would not be a party” to any last-chance agreement. Id. at 326:16–18.
In the meantime, on April 28, 2016, Kugler sent an email that played a large
role in the Board’s decision to impose the restrictions at issue in this case. The
email, which was addressed to Thomas Smith, CPS’s Director of Sports
Administration, concerned the swimming pool at Juarez Academy.
Pl.’s Mem.
Supp. Prelim. Inj., Ex. F, ECF No. 57. This email was the culmination of a series of
emails and efforts by Kugler to draw attention to the school’s broken pool. Hr’g. Tr.,
Nov. 21, at 44:7–20. Kugler, whose children were on the school’s swim and water
4
polo teams, was concerned that CPS officials were not making a sufficient effort to
repair the pool. Id. at 44:13–14, 45:3–6. In the email, Kugler accused CPS of
“active sabotage.” Pl.’s Mem., Ex. F. He expressed frustration with CPS’s efforts
and the answers he had received to his other attempts to bring attention to the
problem. Id. Then, at the conclusion of the email, Kugler issued an ultimatum: “If
you think this is a joke and continue to give me bureaucratic answers[,] see what
happens tomorrow at noon if this is not fixed by then.” Id.
Smith perceived the email as “threatening” and forwarded it to Joseph
Moriarty, a CPS labor officer. Pl.’s Mem., Ex. D. Moriarty in turn forwarded the
email to Jadine Chao, the Board’s Chief of Safety and Security.
Id.
Chao
considered the email to contain a threat of an open-ended nature. Hr’g Tr., Nov. 21,
at 131:4–5. Reflecting on the email, she explained that “[w]hen we saw that openended threat, we [had] to take a precaution and assume that threat might mean
safety—a safety risk to the school or to an individual.”
Id. at 131:5–7.
She
considered the email to be “very threatening, unlike typical standard emails that
[she had] seen from other parents who are frustrated, [and] unlike other typical
emails that [she’d] even seen from Dr. Kugler himself.” Id. at 132:7–10. To that
end, she noted that, whereas Kugler had on other occasions specifically told the
Board he intended to go to the press if the Board did not address his various
concerns, he did not do so here, which increased her level of concern. Id. at 134:16–
17. Board General Counsel Ronald Marmer concurred that the email contained a
threat of violence. Prelim. Inj. Hr’g Tr., Nov. 22, 2016, Vol. 2A, at 227:24–229:4,
5
ECF No. 55. In his view, “the gist of the email was to say that if things weren’t
done by a certain time, events would unfold. And the plain implication of that
language was that it could be a violent encounter.” Id. at 228:6–9.
Later, after contacting the CTU, Board officials learned that Kugler’s true
intention was to hold a press conference if the pool was not fixed by noon on the
following day. Id. at 263:15–18, 291:4–7. Reflecting on his purpose in sending the
email, Kugler testified that he intended to give Smith a “deadline” and wrote the
email as he did so that it would be taken seriously. Hr’g Tr., Nov. 21, at 48:18–20,
52:3–13. He also stated that he “was planning on having a news conference” the
next day if the pool was not fixed. Id. at 51:15–17. The email did not, however,
mention a news conference, and Chao, upon receiving it, instituted the Board’s
safety response plan. Id. at 167:8–16.
Shortly thereafter, in May 2016, the Board imposed restrictions on Kugler’s
access to Board property. These restrictions are the subject of Kugler’s case before
this Court.
Marmer testified that the restrictions were put in place after
considering Kugler’s conduct at grievance hearings, the Juarez Academy pool email,
Kugler’s frequent use of FOIA requests,2 and his criminal history.3 Id. at 218:14–
Marmer explained that the frequency of Kugler’s FOIA requests over a short period
of time suggested to him that Kugler “was more interested in acting out than obtaining
information and [might] be losing some degree of control.” Hr’g Tr., Nov. 22, Vol. 2A, at
232:7–19.
2
Marmer “understood that [Kugler] had a conviction for aggravated battery, that the
circumstances surrounding that conviction involved a violent act involving a blunt
instrument of some kind, and that the aggravated battery conviction itself might have been
the result of a plea agreement bargain down from some more serious charges.” Id. at
234:11–16.
3
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21.
The letter imposing the restrictions begins by stating that Kugler has
“displayed a pattern of ongoing actions that is not only disruptive, but also
threatening in nature.” Pl.’s Mem., Ex. A. It then recounts the incidents described
above, characterizing them as “some examples of serious incidents that no longer
can be tolerated.” Id. The letter further states that Kugler’s “outbursts are violent,
unpredictable, and appear unmanaged.
They leave CPS staff feeling physically
unsafe and threatened.” Id. In light of this behavior, the letter then bars Kugler
from entering any CPS office or school building or coming onto CPS grounds. Id. It
grants two exceptions: (1) Kugler can go to his children’s school events after first
seeking permission from school officials; and (2) Kugler can attend meetings in
accordance with the Illinois Open Meetings Act, but he must first notify Board
officials that he will attend.
Id.
The letter warns that if Kugler enters CPS
property in violation of the restrictions or acts uncivilly on CPS property, he will be
directed to leave, and police will be summoned. Id.
The letter also initially barred Kugler from contacting CPS employees
directly, requiring that “[a]ll CPS email correspondence [ ] be sent to email address:
Kugler-inbox@cps.edu.” Id. The Board later clarified that he was free to email CPS
employees that he represents directly, but any emails to CPS administrators should
be sent to Kugler-inbox@cps.edu. Def.’s Prelim. Inj. Hr’g Ex. 22.4
The letter containing this clarification was admitted as an exhibit at the evidentiary
hearing, but not included in the parties’ post-hearing briefing. The letter can be found on
the docket as an exhibit to Plaintiff’s complaint. See Compl., Ex. B, ECF No. 1.
4
7
According to Marmer, the restrictions are in effect for an indefinite duration.
See generally Hr’g Tr., Nov. 22, Vol. 2A, at 279:14–280:7.
Marmer explained,
however, that the restrictions might be lifted under certain conditions if Kugler
demonstrated a pattern of more appropriate behavior during grievance hearings
conducted by phone or video conference. Id. at 278:15–25.
As to the effect of these regulations, Kugler testified that they have severely
impeded his ability to associate with teachers as part of his union duties and
deprived him of the ability to participate in certain grievance hearings. Hr’g Tr.,
Nov. 21, at 63:3–9, 67:4–68:8.
He acknowledged that he is not prevented from
attending board meetings or his children’s events, Hr’g Tr., Nov. 22, Vol. 2A, at
204:7–25, and that he is still able to participate in grievance hearings by phone or
video and meet with CTU members, so long as the meeting is not at school or on
CPS property, id. at 206:1–13. He has since supplemented the record by providing
examples of the Board preventing him “from representing a number of CTU
members at hearings of various types.” Pl.’s Mot. Supplement Record ¶ 5, ECF No.
66.
In two such meetings, Kugler sought to represent teachers at disciplinary
hearings at the CTU’s office or by videoconference, but was told he could not do so.
See id., Exs. 1–2.5
In a response to Kugler’s motion to supplement, the Board observes that discipline
meetings differ from grievance hearings, “which were the kind of hearing that has been the
focus of the lawsuit through the evidentiary hearing.” Def.’s Resp. Mot. Supplement Record
2, ECF No. 69. The Board further notes that “the Board recently submitted to the CTU for
review and comment proposed protocols for videoconferencing in discipline meetings. These
protocols, which affect all CTU Field Representatives, take time to develop.” Id. (emphasis
omitted). As for grievance hearings, the Board represents that Kugler has attended
twenty-six such hearings by videoconference. Id. at 4.
5
8
Legal Standard
A preliminary injunction is a unique and powerful remedy that courts grant
only where the circumstances of a case clearly demand it. Girl Scouts of Manitou
Council, Inc. v. Girl Scouts of the U.S., Inc., 549 F.3d 1079, 1085 (7th Cir. 2008).
Thus, the party seeking a preliminary injunction bears the burden of persuading
the court, by a clear showing, that a preliminary injunction is warranted. Goodman
v. Ill. Dep’t of Fin. & Prof’l Regulation, 430 F.3d 432, 437 (7th Cir. 2005).
To
determine whether to issue a preliminary injunction, the court engages in a twophase analysis.
Under the threshold phase, the party seeking a preliminary
injunction must make three showings: first, that it will suffer irreparable harm
without the injunction in the period prior to final resolution of its claims; second,
that traditional legal remedies are inadequate; and third, that it has some
likelihood of succeeding on the merits. Girl Scouts, 549 F.3d at 1086. If the movant
does not make all three showings, the court must deny the preliminary injunction.
Id. But if the movant makes all three, the court proceeds to the second, balancing
phase, in which “the court weighs the irreparable harm that the moving party
would endure without the protection of the preliminary injunction against any
irreparable harm the nonmoving party would suffer if the court were to grant the
requested relief.” Id.
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Analysis
I.
Likelihood of Success on the Merits
The Court begins its analysis with evaluating Kugler’s likelihood of success
on the merits.
This factor is often determinative in First Amendment cases,
because “‘the loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.’” ACLU of Ill. v. Alvarez, 679 F.3d
583, 589 (7th Cir. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality
opinion)); Christian Legal Soc’y v. Walker, 453 F.3d 853, 859, 867 (7th Cir. 2006).
Additionally, “the ‘quantification of injury is difficult and damages are therefore not
an adequate remedy.’” ACLU of Ill., 679 F.3d at 589 (quoting Flower Cab Co. v.
Petitte, 685 F.2d 192, 195 (7th Cir. 1982)); accord Christian Legal Soc’y, 679 F.3d at
859, 867. As such, here, Kugler’s likelihood of success on the merits is in some
respects the whole ball game. In evaluating Kugler’s probability of success, the
Court must determine whether his chances of prevailing are better than negligible.
Girl Scouts, 549 F.3d at 1096.
Kugler’s complaint pleads four counts: “Retaliation,” “Denial of Freedom to
Associate and Assemble,” “Denial of Access to Public Forum,” and “Petition for
Grievances.” Compl. 9–12. His briefing focuses almost solely on his retaliation
claim, the first element of which requires the plaintiff to show he engaged in
activity that is protected by the First Amendment. Bridges v. Gilbert, 557 F.3d 541,
546 (7th Cir. 2009). Regardless of the theory on which he relies, however, “[i]n
10
order to prevail in a First Amendment case, the plaintiff must first show that
protected speech is being restricted.” Goodman, 430 F.3d at 438.
Kugler contends that the activities described in the Board’s letter imposing
restrictions on him are protected under the First Amendment. He also argues that
the letter is merely pretext, and that the Board’s restrictions are based on his
repeated criticism of the Board. The Board, for its part, maintains that Kugler’s
conduct is not protected by the First Amendment, and that it is within its rights to
bar him from CPS property.
A.
April 28, 2016 Email
As an initial matter, the Court is persuaded that Kugler’s April 28, 2016
email constituted a true threat and thus is not speech protected under the First
Amendment.
True threats are “statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful violence
to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343,
359 (2003). They are categorically excluded from First Amendment protection. See
id. at 359–60. Traditionally, the Seventh Circuit has used two objective standards
to ascertain whether a statement constitutes a true threat. United States v. Parr,
545 F.3d 491, 499 (7th Cir. 2008). The “reasonable speaker” test “asks whether a
reasonable speaker would understand that his statement would be interpreted as a
threat.” Id. Conversely, the “reasonable listener” test asks “whether a reasonable
listener would interpret the statement as a threat.”
Id.
In applying these
standards, a court focuses on the reasonable speaker test, but conclusions from the
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reasonable listener test—i.e., the listener’s belief and response—are relevant
evidence. See United States v. Saunders, 166 F.3d 907, 913 (7th Cir. 1999).
In his reply, Kugler argues that a subjective standard applies in determining
whether his April 2016 email constituted a true threat. Kugler relies on Virginia v.
Black, highlighting the Supreme Court’s language that a true threat requires that
the speaker “‘means to communicate a serious expression of an intent to commit an
unlawful act of unlawful violence.’” Pl.’s Reply 3, ECF No. 65 (quoting Black, 538
U.S. at 359); see also id. at 9. According to Kugler, because he did not intend to
communicate a serious intent to commit an unlawful act of violence, his statement
cannot constitute a true threat. Id. at 4.
But this argument is incorrect for several reasons. First, Kugler reads too
much into the Supreme Court’s phrasing in Black. There, the Court clearly stated
that a speaker must intend to make a statement that contains a threatening
expression, but did not unambiguously hold that the speaker must also subjectively
intend that the expression be perceived as threatening.
See United States v.
Jeffries, 692 F.3d 473, 479–80 (6th Cir. 2012), abrogated on other grounds by Elonis
v. United States, 135 S. Ct. 2001 (2015). And while the Seventh Circuit in Parr
noted that Black may have cast some doubt on the use of a wholly objective
standard, the court declined to reach the issue. 545 F.3d at 500. A majority of
courts that have reached the issue in the wake of Black, however, have nevertheless
applied an objective test in assessing true threats. United States v. Haddad, No. 09
CR 115, 2014 WL 1493152, at *3 (N.D. Ill. Apr. 16, 2014) (collecting cases). This
12
follows from the Supreme Court’s rationale in Black that “the purpose of the
prohibition on true threats is to ‘protect individuals from the fear of violence’ and
‘from the disruption that fear engenders.’” Id. (quoting Black, 538 U.S. at 360).
Shifting the focus of the analysis to whether the speaker subjectively intended for a
statement to be perceived as a threat would provide inadequate protection for
listeners, who must take threats seriously, particularly in this age of mass violence.
Accordingly, the Court applies the reasonable speaker test, as informed by the
reasonable listener test, in determining whether Kugler’s April 2016 email
constituted a “true threat.”
Here, a reasonable speaker would understand that listeners would interpret
the relevant portion of Kugler’s email—“see what happens tomorrow at noon if this
is not fixed by then”—as a threat of violence. Kugler’s ultimatum was phrased in
vague, provocative language, 6 and accused the Board of “active sabotage.”
A
reasonable author of such an email would expect recipients to fear potential
violence. Additionally, as the final email in a series of complaints, the recipients
were left reading the email with the knowledge that Kugler had grown increasingly
angry and dissatisfied with how his complaints had been handled. A reasonable
author in Kugler’s position, therefore, would expect that using vague language like
“see what happens tomorrow at noon” would lead readers to suspect that Kugler—
frustrated that words were getting him nowhere—intended to escalate his actions.
Kugler asserts that “open-ended” threats cannot be true threats, Reply at 9, but
provides no support for this proposition and fails to account for the possibility that openended threats are more threatening because of the greater range of fear they can instill.
6
13
This is especially true when one considers the Board’s past experiences with Kugler
and his criminal history, even if far removed. See Parr, 545 U.S. at 501 (“[I]n a
threat case, information about the defendant’s background is at least potentially
relevant to gauging whether his statements qualify as a true threat.”).
The reasonable listener test provides further support for the conclusion that
Kugler’s email constituted a true threat.
For the reasons explained above, a
reasonable listener in Chou’s position would interpret the open-ended nature of
Kugler’s ultimatum as presenting the possibility of violence. Additionally, given her
general familiarity with parent emails, as well as Kugler’s past emails, Hr’g Tr.,
Nov. 21, at 132:7–10, and the fact that Kugler did not specifically mention the press
despite having done so previously, id. at 134:16–17, it would be reasonable for a
person in her position to conclude that Kugler was threatening to do more than
conduct a press conference. And, most importantly, reasonable people in Chou’s
and Marmer’s positions, tasked with keeping students safe, would interpret the
email as threatening and take appropriate action.
For the sake of completeness, the Court also notes that, based on Kugler’s
testimony at the preliminary injunction hearing, it is persuaded that he subjectively
intended for the email to convey a serious threat of violence. While Kugler stated
his intent was only to signal that he might go to the press, Hr’g Tr., Nov. 21, at
51:15–17, he offered no reason why he did not simply state that intention in his
email, when he had threatened going to the press so many times before. The only
plausible inference is that he wanted the recipient to believe he might do more. His
14
efforts were successful. Accordingly, to the extent Kugler’s claims are premised on
his April 2016 email, the Court finds that they have a less than negligible likelihood
of success on the merits, because his statements in the email were not protected
speech sufficient to support a First Amendment claim.
B.
Kugler’s Other Conduct
While Kugler’s email precipitated the Board’s letter, it is clear that the
restrictions the Board placed on Kugler also were in response to Kugler’s
intimidating and unprofessional conduct during grievance hearings that preceded
the April 2016 email. Pl.’s Mem., Ex. A. Thus, to the extent that the Board’s
restrictions were based upon these incidents, whether Kugler has any likelihood of
succeeding on his claims depends upon whether the Board can exclude Kugler from
CPS property indefinitely as a consequence of his uncontrolled behavior.
As a preliminary matter, the Court is mindful that “no mandate in our
Constitution leaves States and governmental units powerless to pass laws to protect
the public from the kind of boisterous and threatening conduct that disturbs the
tranquility of spots selected by the people . . . for public and other buildings that
require peace and quiet to carry out their functions, such as courts, libraries,
schools, and hospitals.”
Carey v. Brown, 447 U.S. 455, 470–71 (1980) (quoting
Gregory v. Chicago, 394 U.S. 111, 118 (1969) (Black, J., concurring)). In his reply
brief, Kugler concedes that he “does not claim a substantive right to enter Board
property as a constitutional matter,” instead contending that he has been retaliated
against in response to protected speech, which he believes he should be able to
15
express on CPS property. Reply at 4. Conversely, however, in Count III of his
complaint, Kugler alleges that the Board has deprived him “of his right to [access] a
limited public forum, namely, that school property which the Board has opened up
for grievance hearings in which CTU members like plaintiff can criticize the Board
for its policies and actions.” Compl. ¶ 67. Whether styled as a retaliation claim or
as a denial of access claim, the central question is whether the First Amendment
prohibits the Board from banning Kugler from CPS property altogether and for an
unspecified duration. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 799–800 (1985) (“Even protected speech is not equally permissible in all places
and at all times. Nothing in the Constitution requires the Government freely to
grant access to all who wish to exercise their right to free speech on every type of
Government property without regard to the nature of the property or to the
disruption that might be caused by the speaker’s activities.”).
The Court begins, therefore, by discussing Kugler’s likelihood of success on
the merits with regard to his denial of access claim, and then turns to his
retaliation claim.
1.
Denial of Access Claim
In his complaint, Kugler alleges that the Board has created a limited public
forum in the meeting rooms in which it holds grievance hearings, and that the
Board’s restrictions violate his First Amendment right to participate in those
hearings. The Board appears to take the position that it can exclude Kugler from
CPS property because it constitutes a nonpublic forum. Def.’s Resp. at 11 (citing
16
Vukadinovich v. Bd. of Sch. Trs. of Mich. City Area Schs., 978 F.2d 403, 409 (7th
Cir. 1992)), ECF No. 61.
First Amendment doctrine teaches that there are four types of fora: the
traditional public forum, designated public forum, limited public forum, and
nonpublic forum. Cornelius, 473 U.S. at 802–04; see also Walker v. Texas Div., Sons
of Confederate Veterans, Inc., 135 S. Ct. 2239, 2250 (2015). Traditional public fora
“‘have immemorially been held in trust for the use of the public, and, time out of
mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.’”
Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515
(1939)). In such fora, “the rights of the state to limit expressive activity are sharply
circumscribed”; time, place, and manner restrictions must be content-neutral,
narrowly tailored to serve a significant governmental interest, and permissive of
ample alternative channels of communication. Id. Similarly, in a designated public
forum, where “government property that has not traditionally been regarded as a
public forum is intentionally opened up for that purpose,” restrictions on speech are
“subject to the same strict scrutiny.” Pleasant Grove City v. Summum, 555 U.S.
460, 469–70 (2009).
In a limited public forum or nonpublic forum, however, the state has a much
broader ability to restrict speech. A nonpublic forum is government property that
has not been dedicated to First Amendment activity, and in which the government
“act[s] as a proprietor, managing its internal operations.” Int’l Soc’y for Krishna
17
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). In a limited public forum, the
government reserves the forum “for certain groups or for the discussion of certain
topics.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
In limited and nonpublic fora, the state “may legally preserve the property under its
control for the use to which it is dedicated.” Id. (quoting Lamb’s Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 390 (1993)). To that end, the state
possesses “the right to make distinctions in access on the basis of subject matter
and speaker identity.” Perry, 460 U.S. at 49. That said, “[o]nce it has opened a
limited forum, [ ] the State must respect the lawful boundaries it has itself set. The
State may not exclude speech where its distinction is not reasonable in light of the
purpose served by the forum, nor may it discriminate against speech on the basis of
its viewpoint.”
Rosenberger, 515 U.S. at 829 (internal quotation marks and
citations omitted).
Here, the Court must first define the relevant forum, and then determine its
classification. Cornelius, 473 U.S. at 800. The Court defines the forum by looking
to “the access sought by the speaker.” Id. at 801. Here, Kugler appears to seek
access not to any piece of CPS property, but to meeting rooms used for grievance
hearings at CPS schools and CPS’s offices.7 Thus, the relevant forum is a CPS
meeting room in which a grievance hearing is held.
There are three additional fora at issue in this case: Juarez Academy, rooms used for
public meetings on CPS grounds, and CPS administrators’ email inboxes. Kugler provides
no argument in relation to the restrictions on his access to these fora in his briefing, which
focuses exclusively on his participation in grievance hearings and disciplinary meetings.
The Court therefore declines to address them. Home Care Providers, Inc. v. Hemmelgarn,
861 F.3d 615, 625 (7th Cir. 2017) (holding that undeveloped arguments without discussion
7
18
The question, then, is how to classify such rooms. The Board argues that all
CPS property must be treated as nonpublic fora, without much support or analysis.
On the other hand, Kugler maintains that the meeting rooms in which grievance
hearings are conducted constitute limited public fora for purposes of First
Amendment analysis.
Compl. ¶ 67.
Although Kugler has the better of this
argument (given that CPS has opened these rooms to CTU representatives for the
purpose of conducting such hearings), this distinction matters little, because the
same standard applies to evaluating the Board’s action in either case.
CPS is
permitted wide latitude in preserving meeting rooms for the purpose for which they
are reserved, and may restrict both the content of speech and speaker identity.
Rosenberger, 515 U.S. at 829.
Its restrictions, however, must nevertheless be
reasonable, and must not discriminate on the basis of viewpoint. Id.
The issue, therefore, is whether the Board’s efforts to ban Kugler from CPS
meeting rooms indefinitely, without any established mechanism for lifting the ban,
is a reasonable restriction on his speech. A restriction “must be assessed in the
light of the purpose of the forum and all the surrounding circumstances.” Cornelius,
473 U.S. at 809. The Court must consider the governmental interest at issue, as
well as the nature and function of the relevant forum. United States v. Kokinda,
497 U.S. 720, 732 (1990). Ultimately, a restriction “need only be reasonable; it need
not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U.S.
at 808 (emphasis omitted). Moreover, in this context, the ban need not be narrowly
or citation to authority are waived). To the extent he seeks a preliminary injunction in
relation to these restrictions, his motion is denied.
19
tailored to the government interest, nor must the government’s interest be
compelling. Id. at 809.
CPS property is, by all accounts, devoted to the mission of education. It is
undisputed, however, that in furtherance of that mission, the Board and its
employees have opened up various meeting rooms at CPS’s campuses and offices for
the purpose of holding grievance hearings and disciplinary meetings with teachers
and their CTU representatives. Thus, while the Board has a significant interest in
protecting its employees and maintaining a safe learning environment, Resp. at 1, it
has nevertheless opened up meeting facilities for the purpose of hearings that even
its employees admit “may get heated,” Hr’g Tr. Nov. 22, Vol. 2B, at 296:24–297:9.
Of course, that these meetings might become heated does not in any way excuse
Kugler’s recent conduct, which has reached so severe a level that it has intimidated
other participants and prevented meetings from continuing.
Still, the Court is persuaded that Kugler has a greater than negligible chance
of succeeding in demonstrating that the Board’s broad and indefinite restriction on
his access to CPS property as a CTU representative is unreasonable. First, banning
Kugler from attending such meetings for life without any established recourse is
effectively a ban on any First Amendment activity, disruptive or not, that he might
engage in as an in-person CTU representative. While the Board’s action need not
be narrowly tailored to its interests in education and safety, the Court concludes
that indefinitely banning Kugler from engaging in any expressive activity on CPS
property—while having permitted him to access CPS property since 2010, and
20
continuing to permit such activity by other CTU representatives—is unreasonable.
Huminski v. Corsones, 396 F.3d 53, 92 (2d Cir. 2005) (holding that a notice “singling
out [plaintiff] for exclusion, thereby permitting all others to engage in similar
activity in and around [a nonpublic forum],” was unreasonable); Walsh v. Enge, 154
F. Supp. 3d 1113, 1119, 1128–34 (D. Or. 2015) (concluding that “to prospectively
exclude [plaintiff], or any other individual, based on a past incident, or even several
past incidents, of disruption” from a limited public forum indefinitely was
unreasonable); cf. Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus,
Inc., 482 U.S. 569, 575 (1987) (observing that a ban on all First Amendment activity
in a nonpublic forum would “obvious[ly]” be unjustified “because no conceivable
governmental interest would justify such an absolute prohibition of speech”). The
purpose of the grievance process is in part to afford a teacher a spirited union
representative.
To exclude Kugler as such a representative from the process
indefinitely on the basis of a handful of notable instances of misconduct, after
having permitted him to carry out his duties for several years, is unreasonable.
Granted, Kugler is free to attend grievance hearings by videoconference or
telephone, or meet with teachers off of CPS property.
But this is hardly a
reasonable alternative. Even though Kugler is not entitled to the “most efficient
means” of exercising his First Amendment rights in a nonpublic forum, Cornelius,
473 U.S. at 809, the Board has not explained how this alternative “assure[s] equal
access to all modes of communication,” Perry, 460 U.S. at 53. Anyone who has
participated in a telephone or videoconference knows the expressive limits of these
21
means of communication.
And there is no evidence in the record that hosting
grievance hearings or disciplinary meetings off of CPS property is even possible. In
fact, Kugler testified at the evidentiary hearing that his ability to represent
teachers has been significantly damaged, even with these alternatives in place.
Hr’g Tr., Nov. 21, at 63:3–9, 67:4–68:8. In any case, at least in relation to certain
disciplinary meetings, the ban prevents Kugler from participating altogether,
because videoconferencing is not yet available. Pl.’s Mot. Supplement Record ¶¶ 5–
6, Exs. 1–2.
Second, while the Board was not required to select the most reasonable
response to Kugler’s actions, it declined to pursue other options—such as requiring
a CTU member to accompany Kugler to meetings, and presenting Kugler with a
last-chance agreement—and the Court finds this refusal to be unreasonable. The
Board attempts to explain away these alternatives by pointing to failed negotiations
with the CTU. 8 This lawsuit, however, is between the Board and Kugler. The
Board was at liberty to require a CTU representative to accompany Kugler or
present him with a last-chance agreement on its own accord. Instead, the Board
simply bypassed these options because the CTU would not agree to them. The
Court is at a loss to understand why the CTU’s refusal matters, when it is the
The record is unclear as to whether and when negotiations with regard to the
Board’s request that the CTU assign someone to accompany Kugler to meetings failed. It
does not appear that the CTU wholly objected to doing so, at least with respect to one
meeting discussed at the evidentiary hearing. Hr’g Tr., Nov. 22, 2016, Vol. 2B, at 328:10–
13.
8
22
Board that decides who can access CPS property and it was the Board that
unilaterally imposed the restrictions at issue here. To be sure, these options are
just two of a large swath of reasonable options the Board might have adopted. But
there is no evidence in the record that the Board considered them before issuing the
letter.
Finally, while the Board has indicated that it intends to keep the ban in place
indefinitely, it also indicated at the evidentiary hearing that there might be some
unspecified process by which it would lift the ban. See Hr’g Tr., Nov. 22, Vol. 2A, at
278:15–25; 279:14–280:7. It would be one thing for the Board to have imposed the
ban permanently and irrevocably without any means of review, and, as indicated
above, Kugler has shown some likelihood of demonstrating that such a ban would
be unreasonable.
But the fact that the Board envisions some process—an
unspecified, seemingly arbitrary one, at that—for lifting the ban in the future would
indicate that even it believes that a lifetime ban would be unreasonable.
For these reasons, even assuming that the ban is viewpoint neutral, the
Court finds that Kugler has a greater than negligible chance of demonstrating that
it is unreasonable to bar him indefinitely from attending grievance hearings and
disciplinary meetings on CPS property in light of the purposes of such hearings and
meetings.
2.
First Amendment Retaliation Claim
Kugler has likewise demonstrated a greater than negligible chance of
succeeding on his First Amendment retaliation claim.
23
To succeed on his First
Amendment retaliation claim, Kugler must establish that: (1) he engaged in activity
that is protected by the First Amendment; (2) he suffered a deprivation that would
likely deter a person of ordinary firmness from similarly engaging in First
Amendment activity in the future; and (3) the First Amendment activity was at
least a motivating factor in the Board’s decision to take retaliatory action against
him. Bridges, 557 F.3d at 546.
The Board offers three main arguments why Kugler’s conduct at grievance
hearings that gave rise to the restrictions is not protected activity. First, the Board
contends that Kugler has no First Amendment right to access CPS property. Resp.
at 11. But, regardless of whether this is true, the Board permitted Kugler to access
CPS property to participate in the grievance hearings at issue. And even if the
Board’s restrictions were lawful in light of the nature of the forum at issue (which,
as the Court has explained, they are not), this is no defense to a First Amendment
retaliation claim. Bridges, 557 F.3d at 552 (“‘[A]n act in retaliation for the exercise
of a constitutionally protected right is actionable under Section 1983 even if the act,
when taken for other reasons, would have been proper.’” (alteration in original)
(quoting Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987))).
Second, the
Board contends that Kugler, in the grievance hearings at issue, spoke as a citizen
on a matter of public concern, and thus his speech is unprotected. Resp. at 11–12.
The Board draws this argument from the test applicable to public employers’
regulation of their employees’ speech as articulated in Connick v. Myers, 461 U.S.
24
138 (1983), and Garcetti v. Ceballos, 547 U.S. 410 (2006). But Kugler is not a public
employee of the Board, rendering Connick and Garcetti inapposite.
Finally, the Board maintains that Kugler has no right to engage in bullying,
abusive, and threatening conduct that intimidates and frightens other participants
and irreparably disrupts the ability to hold orderly grievance hearings. Resp. at 15.
The Court wholeheartedly agrees.
But Kugler’s disruptive and unprofessional
behavior did not rise to the level of true threats, nor did it amount to fighting words,
which are “direct personal insult[s] or [ ] invitation[s] to engage in fisticuffs” that
are ‘likely to provoke the average person to retaliation, and thereby cause breach of
the peace,’” Texas v. Johnson, 491 U.S. 397, 409 (1989) (quoting Chaplinsky v. New
Hampshire, 315 U.S. 568, 574 (1942)).
The Board has not argued otherwise.
Indeed, the Supreme Court has made clear that the government may not bar
expressive conduct merely because it finds the idea that the conduct evokes to be
“offensive or disagreeable.”
Id. at 414. The fact that certain aspects of Kugler’s
actions were disruptive and abusive is not of itself sufficient reason to bar him from
CPS property altogether and for an indefinite period of time.
The Board appears to frame the restrictions as aimed at targeting only the
bullying, abusive components of Kugler’s expressive conduct. Indeed, “nonverbal
expressive activity can be banned because of the action it entails, but not because of
the ideas it expresses.” R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992). But
such restrictions must further an important governmental interest unrelated to
suppression of free expression and provide limits “no greater than is essential to the
25
furtherance of that interest.”
Johnson, 491 U.S. at 406–07; United States v.
O’Brien, 391 U.S. 367, 377 (1968). For these reasons, and without condoning his
unprofessional and disruptive behavior, the Court finds that Kugler has some
likelihood of successfully demonstrating that he engaged in activity protected by the
First Amendment, particularly where the Board has barred him from CPS property
entirely and for an indefinite duration.
Kugler has also demonstrated some likelihood of success in proving the
remaining two elements of a First Amendment retaliation claim. It is likely that a
person of ordinary firmness would be deterred from engaging in protected activity if
he or she was banned indefinitely from engaging in any First Amendment activity
in the forum again. And there is no dispute that but for Kugler’s conduct, the Board
would not have put the restrictions in place. Accordingly, in addition to his denial
of access claim, Kugler has also demonstrated some likelihood of success on his
First Amendment retaliation claim.
II.
Irreparable Harm and Inadequate Remedy at Law
As noted above, the loss of First Amendment freedoms for even a short
amount of time constitutes irreparable harm, and it is difficult to quantify
compensatory damages, rendering legal remedies inadequate. ACLU of Ill., 679
F.3d at 590; Christian Legal Soc’y, 453 F.3d at 859, 867. The Court sees no reason
to depart from these well-settled principles in this case. As explained above, Kugler
has been indefinitely barred from exercising any First Amendment right on CPS
property. The Board’s only argument otherwise is that Kugler can still participate
26
in grievance hearings off of CPS property and by telephone or videoconference.
Resp. at 1. This argument fails for two reasons. First, as Kugler explains in his
supplemental brief, he cannot attend certain disciplinary meetings that are
expected as part of his job as a CTU representative. Pl.’s Mot. Supplement Record
¶¶ 5–6, Exs. 1–2. The Board responds that such meetings were not the focus of the
evidentiary hearing, and explains that it is in the process of arranging
videoconferencing for these meetings, Def.’s Resp. Mot. Supplement Record at 4, but
neither response changes the fact that, at present, the Board’s restrictions prevent
Kugler from representing CTU members at disciplinary meetings.
And, more
importantly, Kugler is barred from expressing himself in-person at grievance
hearings for an indefinite period, which has unreasonably harmed him for the
reasons explained above. This abridgement of his First Amendment freedoms is
irreparable and cannot be compensated by monetary damages.
Accordingly, because Kugler has demonstrated that he has a greater than
negligible likelihood of success on the merits, that he will suffer irreparable harm in
the absence of a preliminary injunction, and that legal remedies would be
inadequate, the Court will proceed to the balancing phase.
III.
Balance of Hardships
In First Amendment cases, “if the moving party establishes a likelihood of
success on the merits, the balance of harms normally favors granting preliminary
injunctive relief because the public interest is not harmed by preliminarily
enjoining the enforcement of a statute that is probably unconstitutional.” ACLU of
27
Ill., 679 F.3d at 589–90; see also Christian Legal Soc’y, 453 F.3d at 867. Here, a
statute is not at issue, but the general principle remains the same. As explained
above, Kugler has demonstrated that the abridgement of his First Amendment
rights constitutes irreparable harm. For its part, the Board maintains that Kugler’s
conduct impedes the facilitation of grievance hearings and presents a hostile work
environment for all those involved. Resp. at 19. While these hardships might merit
any range of reasonable restrictions on Kugler’s participation in such hearings, they
do not support a lifetime ban on any speech he might engage in on CPS property as
a CTU representative, for the reasons explained above. Christian Legal Soc’y, 453
F.3d at 867 (observing that “if [defendant] is applying [a] policy in a manner that
violates [plaintiff’s] First Amendment rights . . . then [defendant’s] claimed harm is
no harm at all.”). Thus, Kugler has demonstrated that the balance of hardships
weighs in his favor, and that the public interest would be served by imposing a
preliminary injunction.
28
Conclusion
For the foregoing reasons, Kugler’s motion for a preliminary injunction [6] is
granted in part and denied in part. The parties are directed to meet and confer and
to provide the Court with a proposed order within seven days of this Order
consistent with the Court’s holding herein.
IT IS SO ORDERED.
ENTERED 8/18/17
__________________________________
John Z. Lee
United States District Judge
29
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