Loretta Capeheart in a Mixed Decision Ruled “Unripe” in Seventh Circuit Court of Appeals Decision

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

No. 11-1473


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.


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.

11-1473 3

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

the arrests.

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

of Capeheart.)

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

the department.

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



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