I call Capeheart v. Terrell a “mixed” decision. It did not invoke the Garcetti v Ceballos case, the dreaded case that prohibits public employees while performing their duties from criticising their employers: “When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Welcome to Stalingrad!! Capeheart v Terrell did not condemn Loretta Capeheart for her progressive politics. It appeared to leave the door open for future litigation on state-law claims, vacated a District Court judgment, and allowed a law suit against Northeastern if retaliation occurs looking forward. In addition the Seventh Circuit did not use Garcetti as a weapon to silence faculty at public institutions who dare digress from the canon or challenge illegitimate authority. It did not provide injunctive relief and did not restore Loretta’s position as department chair: she was elected Justice Department chair but was refused appointment by Larry Frank, then provost.
I am not an attorney but this is my reading. I was there during oral arguments and expected a more favourable decision and feared a more pointed, direct attack on academic freedom. Yeah, a loss is a loss but in this environment of the war against teachers, anything less than the worst I suppose is a victory of sorts.
Steve Sanders, the American Association of University Professors lawyer, who wrote an amicus brief for the plaintiff, had this to say about Capeheart in an e-mail to her attorney:
“I do think that you and Loretta should take enormous satisfaction, though, in getting the district court’s sloppy and alarming Garcetti analysis vacated. That, of course, was the AAUP’s interest in the case, though it would have been nice to have the 7th Cir actually make some good law on the merits. It seems quite plausible to me that the court recognized the problems with Judge Manning’s application of Garcetti and decided that, while a full exploration should await another day, a jurisdictional ruling would at least get rid of a bad district court precedent. While an injunction would have been more satisfactory to Loretta, I believe she and you have achieved a very good and worthwhile outcome for her and her fellow faculty members.”
The decision and synopsis in full:
Tenured professor’s request to enjoin the University from instituting a proposed speech policy was found unripe and prospect of harms were too remote.
Capeheart v. Terrell (7th Cir 08/29/2012)
Capeheart, a tenured professor sued the president and provost (university officials) seeking to enjoin them from (1) instituting the president’s demonstration policy and (2) retaliating against her for her speech by depriving her of positions and awards under 42 U.S.C. § 1983. The trial court granted the university officials’ motion for summary judgment. The 8th Circuit vacated the trial court’s judgment, and remanded with instruction to dismiss the federal claim as unripe.
The court reasoned that it could not reach the merits of Capeheart’s speech claim for prospective relief, if “the possibility of any future injury is too remote.” Piggee v. Carl Sandburg College, 464 F. 3d 667, 673 (7th Cir. 2006). Because Capeheart’s speech claim revolved around the university president’s proposed demonstration policy, the court found that the proposed policy may never come into force and was therefore unripe. On Capeheart’s request for an injunction to prohibit the university president or provost from retaliating against her and, specifically, from depriving her of awards or positions because of her speech, the court held that her claims were too speculative because the prospect of harms were too remote.
In the United States Court of Appeals For the Seventh Circuit
Plaintiff-Appellant, v. MELVIN C. TERRELL, et al.,
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cv-01423—Blanche M. Manning, Judge.
ARGUED DECEMBER 8, 2011—DECIDED AUGUST 29, 2012
Before MANION, ROVNER, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Loretta Capeheart is a tenured
Justice Studies professor at Northeastern Illinois University
and an outspoken critic of the university on a
number of issues, including its failure to hire more
Latino professors and its willingness to host military and
CIA recruiters at campus job fairs. She believes that
university officials have defamed her, refused to make
2 No. 11-1473
her department chair, and denied her an award (among
other things) because of her speech. In her federal claim,
Capeheart has sued Sharon Hahs and Lawrence Frank
in their official capacities as Northeastern’s president
and provost, asking for an injunction against future
retaliation in violation of the First Amendment. In addition
to her federal claim under 42 U.S.C. § 1983, she
has asserted a variety of claims under Illinois law
seeking damages and an injunction. The district court
granted the defendants’ motion for summary judgment
and declined to exercise supplemental jurisdiction
over the remaining state-law claims.
The diverse events underlying Capeheart’s claims
started in April 2006, when she joined two members of
the Anti-War Club to protest military recruiters at a
campus job fair. A recruiter asked Capeheart and the
students to move, but they refused. The Dean of
Students, Michael Kelly, called the campus police to
stop the protest. After a conversation with Kelly, one of
the officers told her there would be, as Capeheart puts
it, an “employment action” by the university if she persisted.
At that point, Capeheart left the job fair. Someone
in Kelly’s office prepared a report about the incident,
recommending that the protestors pay restitution to
the placement office for refunds on registration fees it
paid to employers at the fair unhappy about the disturbance.
The report also said that someone spoke to an
associate provost “about potential administrative follow
up with Capeheart.”
In September 2006, Capeheart was on a panel before
the Illinois Legislative Latino Caucus. She criticized NorthNo.
eastern’s failure to recruit more Latino faculty and its
excessive spending on administrators as compared to
faculty. Northeastern’s provost, Frank, also addressed the
Caucus. He agreed with Capeheart that more Latino
faculty should be hired, but insisted that to do so the
university would need more money. He was pleased
that the Caucus was interested in Northeastern, and
said “the more you know about us, I think the better . . .
everybody will be; obviously we have big differences
of opinion, particularly between Loretta and me.”
In February 2007, a group of students protested a
CIA recruiting event. The student-protesters were
blocked from entering the seminar room where the
event was happening because they hadn’t registered. But
one managed to get in anyway. Two students were arrested.
Both students happened to be members of
the Socialist Club, which Capeheart advises. There’s no
evidence that Capeheart organized the protest or was
there, but she took an interest in it after the fact. She
visited the campus police twice the day of the arrests,
called university administrators to advocate for the
students, requested meetings with administrators,
sought support from the faculty union, and emailed
complaints to administrators, faculty, and eventually
the entire university expressing “deep concern” about
She brought up the student arrests at a meeting of
the Faculty Council on Student Affairs. She was
concerned about backlash against the students and the
Socialist Club, said that the vice president of student
4 No. 11-1473
affairs, Mervin Terrell, ignored her concerns, and that
a student-made flyer accusing her of promoting the
protest came from the placement office and was defamatory.
Terrell, who has since retired, responded that
he didn’t think the problem was with the police but
“with the students and their advisor.” He went on to say
that “Dr. Capeheart was actually a subject of interest
for the police because a student had filed stalking
charges against her with the university police.” Terrell
wrote to Capeheart two days later to apologize for
the stalking comment. His comment, however inappropriate,
was prompted by a student’s written complaint
that she was chased by Capeheart when handing out
information about Capeheart’s group. Capeheart complained
to the affirmative action office about Terrell’s
comment. There was an investigation that concluded
Terrell had acted “inappropriately” by publicly discussing
the student complaint. (The student who made
the complaint eventually amended her statement to
name a student associated with the Socialist Club instead
Each year, professors at Northeastern can apply for
a Faculty Excellence Award, which includes a $1,000
prize. Many professors from the same department may
win the award, but in 2007 Capeheart was not among
them. Frank reviewed the denial and had the power
to overrule it, but decided not to because, he said,
Capeheart’s book was not yet in print. Another professor
in Justice Studies who was denied the award successfully
petitioned Frank to overrule the denial; his book
had been published, but, Capeheart argues, was less
No. 11-1473 5
award-worthy than hers because it is a collection of
previously published articles. Capeheart did receive a
Faculty Excellence Award in 2008, and she does not
allege that she has been improperly denied an award since.
In the summer of 2007, Capeheart learned that
Justice Studies was going to separate from Social Work
to become an independent department. The program
coordinator for Justice Studies resigned and so the soon-tobe-
created department would need a new head, and
Capeheart wanted the job. The Justice Studies faculty
met to vote for their nominee: four voted for Capeheart,
one voted against, and one abstained. The administration
almost always appoints the department’s choice
as chair, but not this time. The decision was Frank’s.
According to Capeheart, Frank told her that she was
not competent to be chair. He eventually offered to
make Capeheart associate chair, but she declined.
When Justice Studies became an independent department,
a search committee selected a chair from outside
Finally, in 2008, Hahs circulated a proposed policy
on demonstrations. Her proposal included recommendations
that leaflets be submitted to the administration
one week in advance, that reservations to demonstrate
be made one week in advance, that all demonstrations
happen between 8:30 a.m. and 4:30 p.m., and prohibiting
“disturbances.” The campus groups that reviewed
the proposed policy objected, and Hahs withdrew her
proposal and has not renewed it.
These events prompted Capeheart to seek an injunction
under § 1983 against Hahs and Frank in their official
6 No. 11-1473
capacities. In her complaint, Capeheart sought an injunction
against First Amendment retaliation by Hahs
and Frank and asked to be appointed chair (or department
coordinator, which is the equivalent of chair for
a department or section that is a subunit of another department,
as Justice Studies was). In response to the
defendants’ motion for summary judgment, Capeheart
withdrew her demand to be made chair. That change,
the defendants argue, mooted her one and only federal
claim. We agree that the change in Capeheart’s requested
relief creates a jurisdictional problem, although
we do not think that it is just (or principally) one of
mootness. A claim is moot if it no longer presents a
live dispute between the parties. Wis. Right to Life State
PAC v. Bartland, 664 F.3d 139, 149 (7th Cir. 2011). It is
true that one aspect of Capeheart’s claim is no longer
“live”; she has given it up. But, from the outset, Capeheart
has requested more than just appointment as chair, although
we admit that it has been a bit of a puzzle to figure
out exactly what. But with help from her counsel at oral
argument, it is now clear that Capeheart seeks to
enjoin the defendants from (1) instituting Hahs’ proposed
demonstration policy and (2) retaliating against
her for her speech. With regard to (2), Capeheart wants
to enjoin Hahs and Frank from retaliating against her
by depriving her of positions and awards to which (by
merit or election) she is entitled.
The question we have about our jurisdiction is thus
not whether it is too late to be able to grant Capeheart
injunctive relief, and so whether her claim is moot, but
whether it is too early to consider her claim as it is now.
No. 11-1473 7
See Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010).
Our concern, in other words, is that Capeheart’s
federal claim is unripe, that it “involves uncertain or
contingent events that may not occur as anticipated, or
not occur at all.” Wis. Right to Life, 664 F.3d at 148. We
cannot reach the merits of Capeheart’s claim for prospective
relief, if “the possibility of any future injury [is] too
remote.” Piggee v. Carl Sandburg College, 464 F.3d 667,
673 (7th Cir. 2006). And we will conclude that the possibility
of injury is too remote if she fails to show that she
is “immediately in danger of sustaining some direct
injury” that is “ ‘real and immediate,’ not ‘conjectural’ or
‘hypothetical.’ ” City of Los Angeles v. Lyons, 461 U.S. 95,
102 (1983) (quoting Golden v. Zwickler, 394 U.S. 103, 109-10
Regarding Hahs’ proposed demonstration policy,
Capeheart’s claim is indeed too conjectural. Although it
is often appropriate to consider a pre-enforcement challenge
to a law or policy that is either in force, e.g.,
Bauer, 620 F.3d at 708 (citing cases), or once was, Milwaukee
Police Ass’n v. Jones, 192 F.3d 742, 746-47 (7th Cir.
1999), the same cannot be said about a pre-enactment
challenge, see Fed’n of Adver. Indus. Reps., Inc. v. City
of Chicago, 326 F.3d 924, 932 (7th Cir. 2003). One obvious
reason for that difference is that an existing policy or
law poses a continuing threat of enforcement, see Wis.
Right to Life, 664 F.3d at 147, and some policies are
likely to be reinstated as soon as the pressure from litigation
or a court’s order is off, see Milwaukee Police Ass’n,
192 F.3d at 746-47, and laws too, see City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.11 (1982), but
8 No. 11-1473
a proposed policy may never come into force and, even
if it does, it could well change during the process that
takes it from a possible rule to an actual one.
In some instances, no collaborative process may be
required to make a policy effective, and so it might be
appropriate to view a proposed policy, if sufficiently
concrete, like a withdrawn one likely to go into effect
unchanged. Even if, as Capeheart argues, that begins to
describe this case, because of Hahs’ (alleged) power to
implement policies unilaterally, there still must be some
chance the policy will actually go into effect. Here we
see none. In 2008, Hahs proposed the challenged policy,
it was circulated as a proposal, criticized, and withdrawn.
Nothing in the record hints that it will resurface.
And if someday a version of Hahs’ demonstration policy
is enacted, an appropriate plaintiff can test it in
federal court without asking the court to guess at the
hypothetical harms of a hypothetical rule.
That leaves Capeheart’s request for an injunction to
prohibit Hahs or Frank from retaliating against her and,
specifically, from depriving her of awards or positions
because of her speech. Recall, in 2007, Frank refused to
override a committee decision not to award her a
Faculty Excellence Award, although he did so for
another professor in a similar situation. That same
year, Frank refused to appoint her chair of Justice
Studies even though she won the department vote for
the position. Based principally on those events, Capeheart
seeks an injunction to prevent retaliation in the future.
As things stand now, however, we think that her claim
No. 11-1473 9
is too speculative, the prospect of similar harms too
remote, to allow us to do that.
Twice in 2007 Frank exercised his discretion against
Capeheart, and we make no judgment about whether
those decisions were retaliatory; we only conclude that
those two incidents do not constitute a pattern or
course of retaliatory conduct such that Capeheart is in
“immediate” danger of suffering future injuries. It is
not enough that a few interactions with Frank and Hahs
has caused Capeheart to fear retaliation. We are concerned
about her speech being chilled, but we cannot
entertain her claim based on her outlook alone; we
must find a solid basis for her apprehension in the record.
Further, we believe that “withholding court consideration”
will not be a “hardship” for Capeheart, who may
still proceed against Frank, Hahs, and Terrell for damages
and an injunction on her state-law claims. See Lehn v.
Holmes, 364 F.3d 862, 867 (7th Cir. 2004) (quoting Texas v.
United States, 523 U.S. 296, 301 (1998)).
Our conclusion that Capeheart has not established a
real prospect of retaliation by the official-capacity defendants
may seem like an ungenerous view of the
record. But most of the actions that Capeheart uses to
support her position have little to do with the president
or provost or anyone “in concert” with them. Students
did things she did not like. Terrell is a major player in
her story, but he retired four years ago. It would be
wrong, we think, to stretch our jurisdiction based on
a guess that Capeheart will improperly be denied an
award as retaliation for her speech, as she believes she
10 No. 11-1473
once was. And we will not speculate about whether a
position she wants will become available, that she will
be entitled to the position, after an election perhaps,
and that the president or provost or someone acting on
their orders will deny it to her because of her speech.
See Bauer, 620 F.3d at 709. If Capeheart’s guess is right
and she is targeted for her speech, she can again seek
a federal forum for her claims.
In sum, we recognize that Capeheart’s retaliation
claims are serious, and our intention is not to belittle
them. The question for us now, however, is whether the
prospect of retaliation by Hahs or Frank is more than
conjecture. We conclude that it is not.
The district court (incorrectly) reached the merits
of Capeheart’s federal claim and granted the defendants’
motion for summary judgment. It then declined
to exercise supplemental jurisdiction over the remaining
state-law claims and dismissed them without
prejudice. We review the district court’s decision not
to exercise supplemental jurisdiction for abuse of discretion.
Williams Elecs. Games, Inc. v. Garrity, 479 F.3d 904,
906 (7th Cir. 2007). We do not apply a different standard
or dismiss the supplemental state-law claims automatically
just because our decision is based on unripeness
rather than the merits. See Rosado v. Wyman, 397 U.S. 397,
403-05 (1970). And so this is different from a case where
there was never federal jurisdiction or the plaintiff abandoned
his federal claim, “which ordinarily requires
dismissal of the entire case, including the supplemental
claims.” Townsquare Media, Inc. v. Brill, 652 F.3d 767, 773
No. 11-1473 11
(7th Cir. 2011). That said, “we will reverse the
court’s decision to relinquish supplemental jurisdiction
over state-law claims ‘only in extraordinary circumstances.’
” In re Repository Techs., Inc., 601 F.3d 710, 724-25
(7th Cir. 2010) (quoting Contreras v. Suncast Corp., 237
F.3d 756, 766 (7th Cir. 2001)). And nothing about the
district court’s investment or the nature of Capeheart’s
state-law claims is so extraordinary to make its decision
not to retain those claims an abuse of its discretion. See
28 U.S.C. § 1367(c)(3); Garrity, 479 F.3d at 906-07.
We therefore VACATE the district court’s judgment,
REMAND with instructions to DISMISS the federal claim
as unripe, and AFFIRM its dismissal of Capeheart’s supplemental