Hedgepeth v. Britton

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JEANNE HEDGEPETH,

Plaintiff,

v.

No. 21 CV 3790

JAMES A. BRITTON, KIMBERLY CAVILL,

ANNA KLIMKOWICZ, ROBERT J. Judge Manish S. Shah

LEFEVRE, JR., STEVEN ROSENBLUM,

LISA A. SMALL, EDWARD M. YUNG, and

TOWNSHIP HIGH SCHOOL DISTRICT 211,

Defendants.

MEMORANDUM OPINION AND ORDER

Jeanne Hedgepeth, a high school social studies teacher, wrote a series of

Facebook posts in response to the George Floyd protests. After receiving emails and

calls about the posts, the school district initiated an investigation, determined that

Hedgepeth had violated district policies, and dismissed her. Hedgepeth requested a

hearing before the Illinois State Board of Education. Based on the hearing officer’s

findings and recommendation for her dismissal, the school district dismissed

Hedgepeth for cause. She did not seek judicial review of the dismissal in a circuit

court. Hedgepeth brings this suit against Township High School District 211, its

Board Members, Superintendent Lisa Small, and Human Resources Director James

Britton under 42 U.S.C § 1983 alleging that defendants violated Hedgepeth’s First

Amendment rights when they dismissed her. Defendants move for summary

judgment on claim and issue preclusion as well as on the First Amendment claim.

Plaintiff moves for summary judgment only as to the preclusion defense. For reasons

discussed below, defendants’ motion for summary judgment is granted and plaintiff’s

motion for summary judgment is denied.

I. Legal Standards

A motion for summary judgment may be granted when “the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute of fact is genuine if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party

… [and] [t]he substantive law of the dispute determines which facts are material.”

Runkel v. City of Springfield, 51 F.4th 736, 741 (7th Cir. 2022) (internal citations

omitted). I view all the facts and draw reasonable inferences in favor of the non-

moving party to determine whether summary judgment is appropriate. See

Uebelacker v. Rock Energy Coop., 54 F.4th 1008, 1010 (7th Cir. 2022). These

standards apply equally to cross-motions for summary judgment, Blow v. Bijora, Inc.,

855 F.3d 793, 797 (7th Cir. 2017), and I consider evidence from both motions to ensure

that there is no material dispute. Torry v. City of Chicago, 932 F.3d 579, 584 (7th Cir.

2019).

II. Background

A. Hedgepeth’s Disciplinary History

Hedgepeth worked for twenty years as a social studies teacher at Palatine High

School until her dismissal in 2020. [67] ¶ 1; [69] ¶ 4.1 Hedgepeth was disciplined twice

before her termination.2 Hedgepeth’s first suspension in 2016 occurred after she

presented a lecture about the presidential election results during which she used

phrases like “f-ing lie” and “fricking deported.” [54-2] at 199. She was suspended

without pay for one day for using inappropriate language in violation of district

policies and was warned that similar incidents would result in additional disciplinary

measures and possible termination. [54-2] at 200. Hedgepeth’s second suspension in

2019 involved an exchange with a student where she told them, among other things,

“You haven’t even done your fucking homework.” [54-2] at 202. The District

1 Bracketed numbers refer to entries on the district court docket. Referenced page numbers

are taken from the CM/ECF header placed at the top of filings. The facts are largely taken

from the parties’ responses to Local Rule 56.1 statements where both the asserted fact and

the opposing party’s response are set forth in one document. See [67], [69], [78]. Any fact not

properly controverted is admitted. N.D. Ill. Local R. 56.1(e)(3); see Cracco v. Vitran Exp., Inc.,

559 F.3d 625, 632 (7th Cir. 2009). Because I did not give plaintiff permission to file a reply

brief in support of her cross-motion, she did not have the opportunity to respond to

defendants’ Local Rule 56.1(b)(3) statement of additional facts. [67] at 6–8. Those facts assert

the content of public records, and I take judicial notice of them. Id. No response is necessary.

I disregard all immaterial facts. See, e.g, [78] ¶¶ 15, 24, 29–32, 48, 53. General objections to

how facts are characterized, see [69] ¶¶ 12–19, 49–50, 55, 57, 63, 68, 74–77 and [78] ¶¶ 5–6,

12–13, 52, are sustained and I omit the characterizations and cite to the original language

when possible. Where the parties dispute facts and both rely on admissible evidence, I include

both sides’ versions, understanding that the nonmovant is entitled to favorable inferences.

2 Hedgepeth asserts that her suspensions are only relevant to the defendants’ preclusion

defense. But plaintiff’s history of suspensions and in particular, the Notice to Remedy issued

in 2019, were relevant to her dismissal proceedings and informed the Board’s decision. Both

parties dispute the characterization of the prior disciplinary proceedings, see [78] ¶¶ 33–34,

so I cite to the Conference Summaries, [54-2] at 199–208, for the purpose of explaining what

the Board considered.

suspended her without pay for four days, issued a Notice to Remedy, and required

Hedgepeth to attend six counselor or therapy sessions. [54-2] at 204, 206–08.

B. Facebook Posts

On June 1, 2020, in the midst of the unrest following George Floyd’s death,

Hedgepeth took to Facebook. [67] ¶ 1; [69] ¶¶ 20–21. In response to news about

incidents of rioting and looting, Hedgepeth posted photos from her vacation with the

caption, “I don’t want to go home tomorrow. Now that the civil war has begun I want

to move.” [69] ¶ 21. A Facebook friend responded to her post, “Follow your gut!

Move!!!!!!!!” to which Hedgepeth replied, “I need a gun and training.” [69] ¶ 21.

Hedgepeth also reposted a meme that said “Wanna stop the Riots? Mobilize the septic

tank trucks, put a pressure cannon on em… hose em down… the end.” [69] ¶ 22. She

added, “You think this would work?” [69] ¶ 22. Hedgepeth’s third post was an

exchange via Facebook comments with a former student where she responded in one

part, “I find the term ‘white privilege’ as racist as the ‘N’ word.’”3 [69] ¶ 23; [78] ¶ 12.

3 Hedgepeth argues that the full conversation with the former student is no longer available

and offers her declaration to establish what was said between them. [69-1] ¶¶ 8–10; [78]

¶¶ 12–14. Defendants object that Hedgepeth’s characterization is not supported by

admissible evidence. Hedgepeth’s assertions about what the former student said are not

offered for the truth of the matters asserted, but for their effect on Hedgepeth, who has

personal knowledge of this exchange. I accept her assertion that the comment was a part of

a longer conversation, but I find it immaterial because the Board only acted on what was

known to them. The comment before the Board stated, “I am about facts, truth seeking and

love. I will speak on any topic I choose because I live in a free country. I find the term ‘white

privilege’ as racist as the ‘N’ word. You have not walked in my shoes either so do not make

assumptions about me and my so called privilege. You think America is racist? Then you

have been hoodwinked by the white liberal establishment and race baiters like Jesse Jackson

and Al Sharpton. Travel the world and go see that every nation has racism and some more

than others but few make efforts such as we do to mitigate or eliminate it. I have lived and

seen[.] The people I am informed by about the black experience in America are actually some

of the smartest people in America [a]nd it so happens they are black. Ii (sic) highly

By the next day, school principal Tony Medina began receiving messages about

Hedgepeth’s posts, which were relayed to Superintendent Lisa Small. [69] ¶ 24. The

District also began receiving emails, calls, and media outlet inquiries.4 [69] ¶¶ 27–

recommend studying Thomas Sowell who is now retired and in his 80’s. A treasure. A truth

seeker, does REAL research and analysis. Candace Owens is one of the smartest and most

courageous women in America and Larry Elders speaks the truth with a great sense of humor

and FACTS not feelings. They are who I listen to when it comes to facts about the black

experience in America. Don’t you think there is a deeper problem than racism when 50% of

murders in America are committed by 13% of the population? Do you think there might be a

subtle genocide of black babies when most planned parenthoods are put in poor neighborhood

and that 33% of abortions are black babies, black women only make up 7% of the U.S.

population. The greatest power you have is what you believe about yourself, what have

Democrats, mainstream media and intellectuals in ivory towers been telling the black

community to believe about themselves for forty years? Wake up and stop believing them,

then things will change.” [69] ¶ 23.

4 Hedgepeth raises several objections to the defendants’ characterization of the volume and

nature of the communications received by the District. [69] ¶¶ 27–28, 48. Plaintiff objects to

defendants’ tally of communications received by Superintendent Small, but Small’s

testimony is supported by her personal knowledge of communications that were forwarded

to her. [54-2] at 479–81; see Fed. R. Evid. 602. Her affidavit is itself evidence and does not

require additional support. See Fed. R. Civ. P. 56(c)(4); James v. Hale, 959 F.3d 307, 315 (7th

Cir. 2020) (A party may use an affidavit to oppose a motion for summary judgment where

“the affidavit (1) attests to facts of which the affiant has personal knowledge; (2) sets out facts

that would be admissible in evidence; and (3) shows that the affiant or declarant is competent

to testify on the matters stated”) (cleaned up). These communications are not hearsay

because they are not offered for the truth of the matters asserted, other than as statements

of present sense impressions; they are offered for evidence of their effect on the Board. See

Fed. R. Evid. 803(1). For the same reasons, I overrule plaintiff’s objections to Principal

Medina’s statements about communications he received and his personal opinion on

plaintiff’s fitness as a teacher. See [69] ¶¶ 45–47. Plaintiff offers the Alymer declaration to

dispute defendants’ characterization of the emails received by the District and the public

comments received for the June school board meeting. [69-7] at 68–73. Ultimately, this

dispute between the parties is immaterial. By plaintiff’s own analysis of the communications,

the District received 113 emails related to her speech and 76 comments submitted for the

June board meeting. [69-7] at 68–73. I accept for purposes of summary judgment an inference

in Hedgepeth’s favor that some communications were supportive of her, some emails were

based on template forms, and many communications were submitted by members of the

public rather than students and parents. See [69-7] at 68–73. Even under plaintiff’s analysis,

however, there were communications from people critical of her, including parents and

students. [69-7] at 70–71. Plaintiff also objects to the online news articles offered by

defendants. [69] ¶ 29. The news articles are not hearsay because they are not being offered

for the truth of the matters asserted, but to prove the effect of media attention on the Board.

Newspaper articles are self-authenticating and admissible. See Fed. R. Evid. 902(6).

28. In response, the District issued a press statement clarifying that Hedgepeth’s

posts “do not reflect the values or principles of District 211” and apologizing “for any

harm or disrespect that this may have caused.” [69] ¶ 29.

Later that week, Hedgepeth met with James Britton, the District’s Human

Resources Director. Britton reviewed with Hedgepeth her prior disciplinary

incidents, the Notice to Remedy she received in 2019, the emails and calls coming

into the District about her posts, and provided her an opportunity to explain her

statements. [69] ¶¶ 30–37. Britton advised her that an investigation would follow.

[69] ¶ 25. Britton prepared a memorandum for Small recounting his investigation on

Hedgepeth’s conduct and meetings with her; he recommended that she be considered

for dismissal. [54-2] at 561–66; [69] ¶ 49.

A week later, Small and Britton met with Hedgepeth to inform her that Small

would be recommending that the Board dismiss Hedgepeth. [67] ¶ 2; [69] ¶ 40.

Small’s recommendation was based on Hedgepeth’s prior disciplinary incidents, her

Facebook posts, the public reaction and feedback that the District received, and her

“lack of any understanding or appreciation for why many people found her comments

objectionable.” [54-2] at 481–82; [69] ¶ 53. Small concluded that Hedgepeth violated

school district policies and could no longer effectively serve as a teacher and

recommended her dismissal to the Board.5

5 Small found that Hedgepeth’s conduct violated four district policies: (1) Board Policy KA

(“School-Community Relations Goals”), which requires district employees to exhibit and

maintain “just and courteous professional relationships with pupils, parents, staff members

and others”; (2) Board Policy GCA requiring teachers to “provide guidance to students which

will promote welfare and proper educational development”; (3) Board Policy GBAD (“Social

The Board allowed public comment at two board meetings. At the June board

meeting, at least 58 comments were submitted on the topic of the Facebook posts with

some speakers expressing support and some expressing criticism. [69] ¶ 43; [69-7] at

71–72, 90–94. At the July board meeting, more speakers addressed the posts as well

as issues of diversity and inclusion.6 [69] ¶ 60; [69-7] at 110. During the closed portion

of the July board meeting, the Board took into account Small’s recommendation and

provided an opportunity for Hedgepeth and her attorney to respond. [69] ¶ 58. The

Board then voted to dismiss Hedgepeth. [67] ¶¶ 3–4; [69] ¶ 61.

The Board served Hedgepeth with the Notice of Charges, Bill of Particulars,

and advised her of her right to request a hearing. [69] ¶ 62. The Bill of Particulars

stated in part: (1) “The District has received over 135 emails and phone calls

expressing concern or outrage about your posts. The communications came from

former students, parents, current students and staff. Your postings also received

media coverage, including on WGNTV, ABC7, NBC5, Fox 32, the New York Post and

the Daily Herald” and (2) “Your position requires you to work with staff and students

of all backgrounds and races. Your comments reveal your biases and are inconsistent

Media and Electronic Communication”) requiring that “[a]ny duty-free use must not interfere

with the employee’s job duties or the school environment and warning that “[i]mproper use

of personal technology, social media, or electronic communication for District- or school-

related purposes or in a manner that is considered to have nexus to the District or school is

subject to disciplinary action”; and (4) Board Policy AF of Compassion, Dignity and Respect

that “values and honors the strength and diversity of all individuals.” [54-2] at 178–79, 482.

6 Hedgepeth disputes defendants’ characterization of the public comments made at the July

board meeting. [69] ¶ 60. The meeting minutes show that two speakers expressed support of

Hedgepeth; two speakers addressed “concerning comments”; thirteen speakers addressed the

topic of “equity and culture in District 211”; and two speakers addressed suspension data.

[69-7] at 110.

with the values the District upholds. They injure and impede the efficiency of the

District’s provision of services. The District’s student population and staff are diverse,

and such racially charged language disrupts the provision of educational services.

You have lost the trust and respect of colleagues and students.” [54-2] at 593–94.

C. State Board Hearing

Hedgepeth requested a dismissal hearing before a neutral hearing officer of

the Illinois State Board of Education. [67] ¶ 5; [69] ¶ 62. The officer conducted the

hearing on March 10 and April 9, 2021; Hedgepeth had the opportunity to call

witnesses, offer documents into evidence, cross-examine witnesses, and present

arguments. [69] ¶ 65.

On October 26, 2022, the hearing officer issued a report with findings of fact

and recommendation.7 [67] ¶ 9; [69] ¶ 67. The officer considered three issues: (1)

whether Hedgepeth’s Facebook posts violated the 2019 Notice to Remedy; (2) whether

Hedgepeth engaged in conduct which constitutes irremediable cause for her

dismissal; and (3) whether the Facebook posts were protected speech under the First

Amendment. [54-2] at 620–21. Based on her findings of fact, the hearing officer

determined that Hedgepeth’s posts violated her Notice to Remedy issued in 2019. [54-

7 Hedgepeth objects to the hearing officer’s report on hearsay grounds and argues that it is

only relevant as to the defendants’ preclusion defenses. [69] ¶¶ 67–77. The report was a

public report containing factual findings pursuant to an administrative hearing by an officer

of the Illinois State Board of Education and plaintiff does not suggest that the circumstances

indicate a lack of trustworthiness. See Fed. R. Evid. 803(8)(A)(iii)–(B). It is not excluded by

the rule against hearsay. Id. I overrule plaintiff’s objection to relevance for the same reason

I overruled her objection to the conference reports—the hearing officer’s findings and

recommendation for dismissal were relevant to the school district’s decision, and in turn,

relevant to evaluating her First Amendment challenge to that decision.

2] at 631–33. Hedgepeth’s conduct was irremediable because it “compromised, beyond

repair… her ability to continue to function effectively in her role” and her posts

“destroyed any possibility that she could be viewed as a fair and honest arbiter in the

students’ expressions of different perspectives.” [54-2] at 634–35. The hearing officer

applied the Pickering balancing test and found that Hedgepeth’s First Amendment

rights were not violated by her dismissal. [54-2] at 635–39; Pickering v. Bd. of Ed. of

Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563 (1968). While Hedgepeth’s

posts touched on matters of public concern, the interest of the District in promoting

the efficiency of its educational services to students outweighed her speech interests.

[54-2] at 639.

The Board adopted the hearing officer’s findings of fact and accepted the

recommendation to dismiss Hedgepeth. [67] ¶ 10; [69] ¶ 78. The Board then approved

a resolution and order dismissing Hedgepeth for cause on November 10, 2022. [67]

¶ 10; [69] ¶ 78. Hedgepeth did not seek judicial review of the Board’s order in a circuit

court. [67] ¶ 14; [69] ¶ 80. While the hearing officer’s decision was pending,

Hedgepeth filed this suit for violation of her First Amendment rights under 42 U.S.C.

§ 1983 on July 15, 2021.8 [1].

8 Hedgepeth also filed a lawsuit against Tim McGowan in the Circuit Court of Cook County

alleging defamation and tortious interference with a contract on February 17, 2021. [67-1] at

43, 68–69. That court granted defendant McGowan’s motion for summary judgment on June

26, 2023. [67-1] at 68–69. The court determined that Hedgepeth was dismissed for cause

based on her own conduct, Hedgepeth did not appeal her dismissal under Illinois Agency

Law, the determination by District 211 was final, and Hedgepeth was collaterally estopped

from arguing that her dismissal was wrongful or based on alleged statements of McGowan.

[67-1] at 68–69.

III. Analysis

A. Preclusion

Defendants argue that Hedgepeth’s First Amendment claim is barred by both

issue and claim preclusion. The law of the state of the judgment controls the

preclusion analysis, so Illinois law applies here. See Allen v. McCurry, 449 U.S. 90,

96 (1980). I am required to give the same preclusive effect to a state court judgment

as any Illinois court rendering judgment would give it. 28 U.S.C. § 1738; Matsushita

Elec. Indus. Co. v. Epstein, 516 U.S. 367, 373 (1996). But when there is no state court

judgment, the federal common-law doctrine of preclusion applies. See Univ. of

Tennessee v. Elliott, 478 U.S. 788, 799 (1986). Unreviewed state agency findings are

entitled to the same preclusive effect that a state court would afford them so long as

the agency was acting in a judicial capacity and resolved issues that the parties had

an adequate opportunity to litigate.9 Id. at 799.

Hedgepeth argues that the Board was acting in an “executive” rather than

judicial capacity, so its judgment is not entitled to preclusive effect. [56] at 8. An

agency acts in a judicial capacity if the proceeding involved adequate safeguards: “(1)

representation by counsel, (2) pretrial discovery, (3) the opportunity to present

9 Illinois courts grant both claim and issue preclusive effect to unreviewed state agency

judgments that are “adjudicatory, judicial, or quasijudicial in nature.” Vill. of Bartonville v.

Lopez, 2017 IL 120643, ¶ 71–72. In federal courts, the preclusive effect of unreviewed agency

decisions is limited to factfinding. Allahar v. Zahora, 59 F.3d 693, 696 (7th Cir. 1995). In this

case, issue preclusion resolves the dispute, so I do not address the defendants’ claim

preclusion defense. [53] at 10–11; [66] at 11–14. And I do not address plaintiff’s arguments

that defendants acquiesced to claim-splitting, [56] at 12–13, because acquiescence is not

relevant to issue preclusion. See generally Rein v. David A. Noyes & Co., 665 N.E.2d 1199,

1207 (Ill. 1996) (citing to the Restatement (Second) of Judgments § 26 (1982) (discussing

acquiescence in the context of claim preclusion)).

memoranda of law, (4) examinations and cross-examinations at the hearing, (5) the

opportunity to introduce exhibits, (6) the chance to object to evidence at the hearing,

and (7) final findings of fact and conclusions of law.” Reed v. AMAX Coal Co., 971 F.2d

1295, 1300 (7th Cir. 1992). Hedgepeth was afforded a full hearing with counsel, the

opportunity to call witnesses, offer documents into evidence, cross-examine

witnesses, and present arguments. [69] ¶ 65. The hearing officer issued findings of

fact and recommendation for dismissal, which the Board adopted in full. [69] ¶ 78;

[54-2] at 643–45. This is sufficient to establish that the Board acted in a judicial

capacity.

Under Illinois law, issue preclusion, or collateral estoppel, applies if “(1) the

issue decided in the prior adjudication is identical with the one presented in the suit

in question, (2) there was a final judgment on the merits in the prior adjudication,

and (3) the party against whom estoppel is asserted was a party or in privity with a

party to the prior adjudication.” Gumma v. White, 833 N.E.2d 834, 843 (Ill. 2005). A

judgment is final for issue preclusion purposes when the possibility of appellate

review has been exhausted. In re A.W., 896 N.E.2d 316, 321 (Ill. 2008). Unlike claim

preclusion, issue preclusion is limited to what was actually litigated and determined

in an earlier proceeding. See Gumma, 833 N.E.2d at 843. There is no dispute that the

third element is satisfied here.

One issue decided by the Board and the issue presented in this suit are

identical—whether the Board violated Hedgepeth’s First Amendment rights by

dismissing her. [54-2] at 635–39. The third issue that the hearing officer explicitly

addressed was, “[w]hether Ms. Hedgepeth’s Facebook posts at issue were protected

speech pursuant to the First Amendment.” [54-2] at 621. Based on her findings of

fact, the hearing officer applied the Pickering test and determined that Hedgepeth’s

speech touched on matters of public concern, but the District’s interest in promoting

efficiency of providing educational services outweighed her speech interests. [54-2] at

635–40. And the determination of Hedgepeth’s First Amendment defense was

necessary to the Board’s judgment of termination for cause, so the first element of

issue preclusion is satisfied. [54-2] at 631.10

The Board’s dismissal was a final judgment on the merits. The Illinois School

Code governs the dismissal of tenured teachers. See 105 ILCS 5/24-12. A tenured

teacher who is dismissed may request a full hearing before a neutral hearing officer

through the Illinois State Board of Education. 105 ILCS 5/24-12(d)(1). After receiving

the hearing officer’s report with findings of fact and recommendation,11 the school

10 Hedgepeth’s objection that the hearing officer could not hear her § 1983 claim for monetary

damages does not defeat issue preclusion, which looks at the identity of issues. See Mir v.

State Farm Mut. Auto. Ins. Co., No. 1:19-CV-1225, 2020 WL 1265417, at *5 (C.D. Ill. Mar. 16,

2020), aff'd, 847 Fed. App'x 347 (7th Cir. 2021) (“A claim is essentially a remedy for a specified

wrong, whereas an issue is a matter of law or fact determined by a prior proceeding.”). As for

claim preclusion, the difference in available remedies does not foreclose that defense either.

See Balcerzak v. City of Milwaukee, Wis., 163 F.3d 993, 997 (7th Cir. 1998) (rejecting litigant’s

argument that seeking a remedy under § 1983 in federal court defeats claim preclusion

because the argument “if accepted, would undercut claim preclusion in every case where a

constitutional issue was posed as a defense to a civil service commission or police board

action”); see also Abner v. Illinois Dep’t of Transp., 674 F.3d 716, 720 (7th Cir. 2012) (applying

Illinois law and finding claim preclusion barred federal suit where the proof required in the

state administrative proceeding and federal § 1983 action was the same, the two suits arose

from the same cause of action, and the state civil service commission could have heard the

litigant’s allegations of harassment and retaliation).

11 The recommendation must address whether: “(i) the conduct at issue occurred, (ii) the

conduct that did occur was remediable, and (iii) the proposed dismissal should be sustained.”

105 ILCS 5/24-12(d)(8).

board is required to issue a written order either retaining or dismissing the teacher

for cause. 105 ILCS 5/24-12(d)(8). The order must incorporate the officer’s findings of

fact, but the board may modify or supplement the findings of fact if they are against

the manifest weight of the evidence. 105 ILCS 5/24-12(d)(8). The decision of the school

board is final unless reviewed under the Administrative Review Law, which requires

any action to review a final administrative decision to be filed within 35 days of

service of the decision. See 105 ILCS 5/24-12(d)(8)–(d)(9), 5/24-16; 735 ILCS 5/3-102–

103.12

Hedgepeth’s failure to appeal the Board’s decision under the Illinois School

Code means that the Board’s decision constituted a final judgment on the merits.

After Hedgepeth’s hearing and the officer’s determination, the Board approved a

resolution and order dismissing her for cause. [69] ¶ 78. This decision was final under

Section 24-(d)(9) unless she filed an action for review in the circuit court within 35

days after she was served with the Board’s decision on November 15, 2022. See 105

ILCS 5/24-12(d)(9), 5/24-16; 735 ILCS 5/3-102–03; [69] ¶ 79. She did not file an action

for judicial review, so the Board’s judgment is entitled to preclusive effect under

Illinois law. [67] ¶ 14; [69] ¶ 80; see also Vill. of Bartonville v. Lopez, 2017 IL 120643,

¶ 51 (finding that preclusion barred defendants from relitigating a termination

decision in arbitration proceedings where defendants failed to seek administrative

review of the police board’s termination of defendant officer). Hedgepeth argues that

12 Section 5/24-16 provides that the Administrative Review Law applies to and governs

proceedings for judicial review of a school board decision to dismiss for cause. 105 ILCS 5/24-

16.

there was no circuit court review of the Board’s decision, so there is no judgment to

give preclusive effect to. [56] at 9. But there is no circuit court judgment because she

did not seek review, and Hedgepeth cites no authority for the proposition that a

litigant can evade finality by not appealing. See Taylor v. City of Lawrenceburg, 909

F.3d 177, 181 (7th Cir. 2018) (applying preclusion under Indiana law and finding a

board’s termination decision final even though the litigant withdrew appeal from

judicial review).

All the requirements of issue preclusion are met here, but Illinois courts do not

apply preclusion unless “it is clear that no unfairness results to the party being

estopped.” Nowak v. St. Rita High Sch., 757 N.E.2d 471, 478 (Ill. 2001). Hedgepeth

argues that giving preclusive effect to the defendants’ dismissal would be unfair and

prejudicial because defendants are “inherently conflicted” and cannot be the “final

arbiters” of her federal civil rights claim against them. [56] at 11. But any prejudice

to Hedgepeth by giving preclusive effect to the Board’s dismissal is a consequence of

her own choices. She had the right under Illinois law to file for administrative review

with the circuit court if she believed the Board was biased and the judgment to be

unfair. State court review provides the opportunity for a party to challenge an

administrative decision for these reasons, but she opted not to do so.

Issue preclusion applies to facts resolved at the agency level, not conclusions

of law. See Allahar v. Zahora, 59 F.3d 693, 696 (7th Cir. 1995). In some cases, giving

issue-preclusive effect to an agency’s findings of fact leaves little room for a contrary

conclusion of law. See, e.g., Taylor, F.3d at 181 (finding that issue preclusion barred

a First Amendment claim where the board’s findings as to causation and improper

bias in a termination decision precluded subsequent litigation). The result of the

Pickering balancing test is a legal conclusion, but it contains predicate factual

determinations. Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002). Among the

predicate facts resolved before the agency here were whether there was an actual

disruption and the scale of the disruption. The hearing officer found that there was

a significant and largely negative response from the community, questioning

Hedgepeth’s ability to represent the District and function as a teacher; school

administrators spent a significant amount of time, in meetings and by phone calls,

addressing these concerns; the posts caused significant unrest among current

students, parents, coworkers, and the community; caused extra workload for

administrators; harmed Hedgepeth’s relationship to the community and to District

students and parents; and threatened to harm their relationship to the District. [54-

3] at 614–17, 632, 634–35, 640. Issue preclusion bars Hedgepeth from relitigating

these predicate facts, and they establish that Hedgepeth’s posts interfered with the

regular operation of the school district. With that, the outcome of the Pickering test

necessarily follows—as discussed below, the District’s interests in efficient provision

of its services outweighed Hedgepeth’s speech interests. Hedgpeth’s speech was not

protected by the First Amendment, and she cannot relitigate her First Amendment

claim in this court.

B. First Amendment Claim

Even if issue preclusion did not bar Hedgepeth from relitigating her First

Amendment claim, no material facts are in dispute and summary judgment in favor

of defendants on the merits is appropriate. To bring a claim for retaliation under the

First Amendment, Hedgepeth must establish that: (1) she engaged in constitutionally

protected speech; (2) she suffered a deprivation likely to deter protected speech; and

(3) her protected speech was a motivating factor in her termination. See Harnishfeger

v. United States, 943 F.3d 1105, 1112–13 (7th Cir. 2019). Only the first element is in

dispute. [78] ¶ 3.

Whether a government employee’s speech is protected under the First

Amendment is a question of law that may require “predicate factual determinations.”

Gustafson, 290 F.3d at 906. Hedgepeth must show that she spoke as a private citizen

on a matter of public concern. See Harnishfeger, 943 F.3d at 1113 (citing Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006) and Connick v. Myers, 461 U.S. 138, 147 (1983)).

Defendants do not dispute these two elements, so the burden shifts to them to show

that the District’s interest as an employer in “promoting the efficiency of the public

services it performs” outweighs Hedgepeth’s speech interests. See [76] at 5; Pickering

v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563, 568 (1968).

Speech on matters of public concern loses its First Amendment protection if a

government employer’s management interests outweigh its employee’s free-speech

interests. Kristofek v. Village of Orland Hills, 832 F.3d 785, 795 (7th Cir. 2016).

In weighing the competing interests under the Pickering balancing inquiry,

relevant factors include:

(1) whether the speech would create problems in maintaining discipline or

harmony among co-workers; (2) whether the employment relationship is one

in which personal loyalty and confidence are necessary; (3) whether the speech

impeded the employee’s ability to perform her responsibilities; (4) the time,

place and manner of the speech; (5) the context in which the underlying dispute

arose; (6) whether the matter was one on which debate was vital to informed

decisionmaking; and (7) whether the speaker should be regarded as a member

of the general public.

Kristofek, 832 F.3d at 796 (quoting Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir.

2000)). If an employee’s speech touches upon a matter of “strong public concern,” then

the government must show a higher degree of potential or actual disruption to justify

the restriction. See Craig v. Rich Twp. High Sch. Dist. 227, 736 F.3d 1110, 1119 (7th

Cir. 2013); see also Waters v. Churchill, 511 U.S. 661, 673 (1994) (noting that a court

may give “substantial weight to government employers’ reasonable predictions of

disruption”). On the other hand, “the less serious, portentous, political, significant

the genre of expression,” the less demanding the showing that the government must

make. Eberhardt v. O’Malley, 17 F.3d 1023, 1026 (7th Cir. 1994). The extent of an

employee’s authority and interactions with the public also bears on the degree of

government interest in preventing disruption. See Rankin v. McPherson, 483 U.S.

378, 392 (1987) (holding that the government’s interest in discharging a low-level

employee did not outweigh her speech interests where the employee’s position was

limited to clerical work and did not involve law enforcement activity). Special

consideration is given in the context of school-employee speech by virtue of the

position of trust that a teacher in a public school occupies. See Craig, 736 F.3d at 1119

(noting that the employee’s position as a public school counselor working closely with

students involved “an inordinate amount of trust and authority”); see also Melzer v.

Bd. of Educ. of the City Sch. Dist. of the City of New York, 336 F.3d 185, 198 (2d Cir.

2003) (recognizing that a public school teacher’s “position by its very nature requires

a degree of public trust not found in many other positions of public employment” so

disruption caused by a teacher’s speech can warrant discipline action against the

teacher).

Even when viewing the undisputed facts in the light most favorable to

Hedgepeth, defendants’ interest in addressing the disruption caused by her Facebook

posts outweighed her speech interests. Hedgepeth’s three Facebook posts, though

varying in content and form, clearly touched on a matter of public concern—political

unrest and race in the wake of police violence. See Connick, 461 U.S. at 147–48

(looking to the “content, form, and context of a given statement, as revealed by the

whole record” to determine whether speech addresses a matter of public concern).

While Hedgepeth’s speech satisfies this threshold to reach Pickering balancing, it

does not rise to the level of public-employee speech that warrants a stronger showing

of disruption by the government. Public-employee speech may hold “special value”

because the employee “gain[s] knowledge of matters of public concern through their

employment.” Lane v. Franks, 573 U.S. 228, 240 (2014). For example, a government

employee who reports misconduct or exposes corruption is well-situated to bring those

issues to light, and the public’s interest in receiving that information is particularly

strong. See Garcetti, 547 U.S. at 425. Although it involved politically salient issues,

Hedgepeth’s speech does not afford it special weight. I accept her characterization of

the posts: (1) the “civil war” post where she commented “I need a gun and training”

was a reference to political division and personal safety concerns; (2) the “Wanna Stop

the Riots?” post was satirical rather than a literal call for violence against protesters,

and (3) the exchange with the former student about the term “white privilege” was

informed by Black conservative thought and supported by statistics. [68] at 13–17.

None of this suggests that Hedgepeth’s speech was informed by specialized

knowledge gained through her public employment or that she was offering novel

commentary to the fraught political moment. Her chosen genre and medium of

expression—hyperbolic or satirical social media posts and a back-and-forth

discussion with a friend—are toward the less serious, less significant end of the

spectrum of works of public commentary. In her own telling, she was joking and

otherwise sharing the views of others. Her speech was on a matter of public concern,

but it was not the type of public-employee speech that demands “particularly

convincing reasons” by defendants to justify its restriction. See Gustafson v. Jones,

117 F.3d 1015, 1019 (7th Cir. 1997).

Both parties dispute the importance of Hedgepeth’s post being shared on her

personal Facebook page and whether she flouted district policy by accepting Facebook

friend requests from former students. [68] at 17; [76] at 7–8. Hedgepeth was on

vacation and her profile did not expressly identify her as a Palatine High School

teacher. [69] ¶ 21; [78] ¶ 2. Speech made outside of the workplace may be less

disruptive to the “efficient functioning of the office.” See Rankin, 483 U.S. at 388–89.

On the other hand, posting on a social media platform carries the risk of

amplification. See Liverman v. City of Petersburg, 844 F.3d 400, 407 (4th Cir. 2016)

(“A social media platform amplifies the distribution of the speaker’s message—which

favors the employee’s free speech interests—but also increases the potential, in some

cases exponentially, for departmental disruption, thereby favoring the employer’s

interest in efficiency.”). Unlike the government employee in Harnishfeger, nobody

leaked Hedgepeth’s posts through extensive digging. See Harnishfeger, 943 F.3d at

1118. Hedgepeth admits that she accepted friend requests from former students. [78]

¶ 23. The parties dispute whether it was formal district policy that teachers were

instructed to unfriend former students with younger siblings still attending a school

or if this was a “mere suggestion.” [69] ¶ 10. Even in drawing this inference in favor

of Hedgepeth, it is undisputed that her posts had their own momentum to reach a

wide audience, including District 211 constituents, and reflected on the public’s

perception of Hedgepeth as a teacher. See [69] ¶ 48; [54-3] at 8–275.

Hedgepeth devotes much of her briefing to assert that her posts were not racist.

Regarding the third post, she offers expert testimony to support her point that her

comments were influenced by Black scholars who have made similar assertions. [68]

at 15–16; [69-6] at 39–65. She argues that her comments about “Black genocide” were

supported by statistics of the “Black murder rate and Black abortion rate.”13 [68] at

13 Hedgepeth also argues that defendants made no effort to verify the truth of her statements

in the third post, so the defendants do not meet their burden under Pickering. [68] at 16. But

defendants did not pursue Hedgepeth’s dismissal based on a belief that her posts were false.

[76] at 12. False speech or speech made with reckless disregard of the truth is not entitled to

First Amendment protection, but that does not mean the government must establish the

15. But the other side of Pickering balancing weighs the government’s legitimate

interest in minimizing disruption, and Hedgepeth’s intent and meaning behind her

posts do not diminish the impact of her speech on the District’s operations. After all,

a public employee must also “by necessity… accept certain limitations on his or her

freedom” when entering public service. Garcetti, 547 U.S. at 418.

Defendants offer ample undisputed evidence of actual disruption caused by

Hedgepeth’s Facebook posts.14 By the time the Board voted to dismiss Hedgepeth in

July, the District had received 113 emails about her posts. [69] ¶ 48; [69-7] at 68. The

record contains many examples of students and parents expressing concern about

Hedgepeth’s fitness as a teacher. In an email to Board Member Cavill, students

shared that “[a]s students of color, we feel angered by Ms. Hedgepeth’s statements

and feel that she should no longer have a place as staff at PHS… We don’t want a

teacher at Palatine who believes we are being dramatic when a racist act has been

done against us. We want a teacher who understands what we are going through and

how the obstacles presented to us for simply being of different color.” [54-3] at 26–28.

falsity of her statements in order to prevail under Pickering balancing. See Greer v. Amesqua,

212 F.3d 358, 373 (7th Cir. 2000) (internal citation omitted) (“Recklessly false statements by

a public employee enjoy no First Amendment protection, and from this principle Greer

wrongly extrapolates that speech which is factually true therefore must be absolutely

protected. However, we have never held that an employer must prove the falsehood of the

employee’s statement before disciplining the employee based on that speech.”)

14 Hedgepeth attempts to impose a limitation on when defendants’ claim of disruption can be

“measured.” [68] at 21–22. She argues that disruption must be measured only up until

Small’s recommendation to the Board for Hedgepeth’s dismissal. Pickering balancing

prohibits consideration of “hypothetical concerns that a governmental employer never

expressed.” See Harnishfeger, 943 F.3d at 1116. Instead, I must look to what the District’s

concerns “really were.” Id. But the events leading up to the Board’s decision to dismiss

Hedgepeth were not hypothetical and are relevant to the assessment of actual disruption that

defendants were responding to.

One email by a parent urged a response by the District: “I don’t believe Hedgepeth is

the only teacher with the same beliefs. I hope that there will be anti bias training,

discrimination training, diversity speakers for teachers and students.” [54-3] at 73–

74. Another parent email expressed concern that Hedgepeth’s post about the civil war

and needing a gun was “very alarming” and that she was unclear on whether the post

“was meant to intimidate those with views different than her, or if it was mean [sic]

to encourage others to be violent.” [54-3] at 86–89. The posts also attracted media

attention and prompted the District to issue a press statement. [69] ¶ 29; [54-2] at

542–48.

Defendants’ actions to dismiss Hedgepeth based on public reaction to her

speech did not amount to a “heckler’s veto.” The First Amendment generally prohibits

the suppression of unpopular speech because of audience reaction; but in this context,

students and parents are not a mere audience. See Melzer, 336 F.3d at 199. The

concerns raised by students and parents regarding Hedgepeth’s role as a teacher were

a reasonable consideration for the District. Students and parents are not “outsiders”

attempting to silence speech, but “participants in public education, without whose

cooperation public education as a practical matter cannot function.” Id. Hedgepeth

notes that the community reaction included comments in support of her. See, e.g., [54-

3] at 13–16. But support expressed in Hedgepeth’s favor does not negate the District’s

justification in responding to criticism and feedback. See Melzer, 336 F.3d at 198 (“It

is true that some parents and students expressed support for Melzer as a person

harmlessly expressing his ideas. It is nonetheless entirely reasonable for the Board

to believe that many parents and students had a strong negative reaction to him, and

that such a reaction caused the school to suffer severe internal disruption.”).

Hedgepeth also makes a variety of objections about the scale of the disruption;

the fact that many comments were made by general members of the public rather

than parents or teachers; and that some of the emails sent to the District were based

on form templates. [68] at 22–24. Hedgepeth may dispute defendants’

characterization of the comments, but she does not dispute, for example, that the

district received 113 emails related to her Facebook posts or that 44 public comments

submitted to the June board meeting expressed criticism of her. [69] ¶ 27; [69-7] at

68, 71–72. While the concerns of parents and teachers are particularly relevant to

weighing a school district’s interest in restricting teacher speech, comments raised by

members of the public are not irrelevant. The government’s interest in maintaining

public perception is an inherent part of its operations. See Rankin, 438 U.S. at 390–

391; see also Locurto v. Giuliani, 447 F.3d 159, 178 (2d Cir. 2006) (finding that the

government may “legitimately regard as ‘disruptive’ expressive activities that

instantiate or perpetuate a widespread public perception of police officers and

firefighters as racist”). Nor does the fact that some of the emails sent to the District

were based on recycled language suggest that the disruption was in fact minimal or

overblown. The bottom line is that the District was forced to divert resources from

the normal operations of school services to address Hedgepeth’s posts.

Some of the defendants expressed personal opinions disapproving of her

speech, so Hedgepeth argues that the District’s justifications for her dismissal are

pretextual. [68] at 26–28. Defendants do not dispute that Superintendent Small, for

example, was “appalled” by Hedgepeth’s speech. [78] ¶ 52. Board member Cavill

commented that the third post invoked “racial stereotypes and racial tropes.” [78]

¶ 52. Whether individual defendants viewed Hedgepeth’s speech as inflammatory or

racist does not diminish the evidence in the record that external complaints about

her speech amounted to significant disruption.

Hedgepeth argues that defendants do not show that her speech actually

interfered with her job performance. [68] at 19. A government employer is not

required to show actual interference with an employee’s ability to perform her job

duties to prevail under Pickering balancing, but the assessment must be reasonable

and supported by evidence rather than “mere speculation.” See Craig, 736 F.3d at

1119. The concerns expressed by community members constituted actual disruption,

but it also provided a reasonable basis for defendants to conclude that Hedgepeth’s

ability to perform her responsibilities as a teacher was compromised. These concerns

touched on her ability to be unbiased in her role as a teacher, particularly to students

of color. See, e.g., [54-3] at 53 (email by family member of a current PHS student), 73

(email by parent of current student in Hedgepeth’s homeroom class). Administrators

also shared this concern. In recommending Hedgepeth’s dismissal to Small and

Britton, Principal Medina raised his concern about Hedgepeth’s posts negatively

reflecting on her ability to be an effective teacher and build “a trusting relationship

with students” given the “substantial minority population” at the school. [54-3] at 2–

3. He also based this concern on her past conduct “involving intemperate outbursts

in the presence of students.” [54-3] at 2. Small’s recommendation of dismissal to the

Board was based on her view that the “overwhelming negative response to

Hedgepeth’s posts made it clear that many students would not feel that they could

safely voice their opinions regarding sensitive subjects such as race in Hedgepeth’s

classroom.” [54-2] at 482. Moreover, the District’s assessment about Hedgepeth’s

ability to perform her duties was also reasonably informed by her prior disciplinary

history, which included, among other things, unprofessional conduct violating district

policy while speaking to students. [54-2] at 202–04, 206–08. In Hedgepeth’s case,

there was also an investigation and dismissal hearing regarding her fitness as a

teacher, violation of district policies, and ability to continue in the role. See Bennett

v. Metro. Gov’t of Nashville & Davidson Cnty., Tennessee, 977 F.3d 530, 544 (6th Cir.

2020) (“There is no precedent requiring further disruption to an office environment

once the government confirms violations of policy and ascertained disruption.”); see

also Fenico v. City of Philadelphia, 70 F.4th 151, 168 (3d Cir. 2023) (noting deference

to “employers’ reasonable interpretations of employee speech and predictions of

disruption” especially where an internal investigation into the conduct has occurred).

The Board’s judgment about Hedgepeth’s compromised ability to perform her role as

a teacher was not based on mere generalizations or speculation but actual concerns

reflected in the comments and inquiries that the District received. All of these factors

taken together constituted a reasonable basis for her dismissal. See Craig, 736 F.3d

at 1120 (finding the school district “reasonably predicted” that plaintiff’s book would

cause apprehension among female students in seeking his help as a counselor).15

Undisputed facts in the record show that Hedgepeth’s posts caused significant

disruption to the District’s operations. The posts interfered with operations by

diverting resources to field the concerns raised by parents, teachers, community

members, and administrators; and those concerns also reasonably informed the

prediction that Hedgepeth had compromised her ability to do the job. Those

management interests outweighed Hedgepeth’s speech interests as a matter of law

under Pickering. Defendants did not violate plaintiff’s First Amendment rights by

dismissing her.

C. Qualified Immunity

Defendants also move for summary judgment on a qualified immunity defense.

[53] at 14–15. Qualified immunity protects government officials who “make

reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd,

563 U.S. 731, 743 (2011). Government officials are entitled to qualified immunity

unless their conduct violated a constitutional right that was “clearly established” at

the time. See Tousis v. Billiot, 84 F.4th 692, 697 (7th Cir. 2023). In the context of

Pickering balancing where “a wide gray area between the clearly legal and the clearly

15 Defendants also point to Hedgepeth’s speech impairing her ability to maintain close

working relationships with her colleagues. [53] at 12. They do not identify facts properly

supported in the record to show that Hedgepeth’s speech was disruptive to the District’s

interest in maintaining harmony among co-workers, so I find this justification to be

unsupported for purposes of summary judgment.

illegal” exists, an official is afforded the “the benefit of the doubt” if a case falls within

the gray area. Gustafson, 117 F.3d at 1021.

Unlike the defendants in Harnishfeger or Gustafson who terminated an

employee based on speech that neither caused actual disruption nor supported a

reasonable belief about potential disruption, the undisputed record here shows that

the Board’s dismissal of Hedgepeth was based on evidence of actual disruption See

Harnishfeger, 943 F.3d at 1121; Gustafson, 290 F.3d at 913. There may be grounds

for debate over the amount of disruption caused by and the value of Hedgepeth’s

speech, but any mistake in the balancing would be reasonable. Hedgepeth has not

demonstrated that the Board’s Pickering analysis was plainly incompetent or a

knowing violation of the law. See Lopez v. Sheriff of Cook Cnty., 993 F.3d 981, 988

(7th Cir. 2021) (qualified immunity protects “all but the plainly incompetent or those

who knowingly violate the law”) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

The individual defendants are entitled to summary judgment based on qualified

immunity.

IV. Conclusion

Plaintiffs First Amendment claim is barred by issue preclusion. In the

alternative, defendants did not violate plaintiffs First Amendment rights and the

individual defendants are entitled to qualified immunity. Defendants’ motion for

summary judgment, [52], is granted and plaintiffs cross-motion for summary

judgment, [55], is denied. Enter judgment in favor of defendants and terminate civil

case.

ENTER:

anish S. Shah

United States District Judge

Date: February 20, 2024

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