Kathleen Hayes v. Board of Education of the City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 24-2890

KATHLEEN HAYES,

Plaintiff-Appellee,

v.

BOARD OF EDUCATION OF THE CITY OF CHICAGO

and MATTHEW LYONS,

Defendants-Appellants.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 21-cv-01198 — John F. Kness, Judge.

____________________

ARGUED MAY 14, 2025 — DECIDED MAY 28, 2026

____________________

Before SYKES, JACKSON-AKIWUMI, and PRYOR, Circuit

Judges.

JACKSON-AKIWUMI, Circuit Judge. Kathleen Hayes, a col-

lege administrator responsible for staffing student teachers

with Chicago Public Schools, made several public comments

disparaging the school district. Matthew Lyons, the school

district’s Chief Talent Officer, notified Hayes’s supervisors

about her comments and asked them to address the issue in

2 No. 24-2890

whatever manner they saw fit. The supervisors saw fit to ter-

minate Hayes’s employment.

Hayes then sued Lyons and the Board of Education of the

City of Chicago for, among other claims, retaliation in viola-

tion of the First Amendment. Lyons and the Board moved for

summary judgment on several grounds including qualified

immunity. The district court denied the motion.

We see the issue largely as Lyons does, so we reverse.

Even if we assume that Lyons violated Hayes’s First Amend-

ment rights by complaining to her employer about her

speech, no sufficiently analogous caselaw put Lyons on notice

of this. Lyons therefore is entitled to qualified immunity and

judgment as a matter of law. The Board, however, is not a

proper party to this appeal, so we dismiss it from this appeal

and leave the parties to sort their rights in district court.

Lastly, because this appeal is not frivolous, we deny Hayes’s

request under Federal Rule of Appellate Procedure 38 to sanc-

tion her opponents.

I

Kathleen Hayes was an administrator at Northwestern

University’s School of Education and Social Policy from 2016

until her termination in 2020. In that role, Hayes placed

Northwestern student teachers at Chicago Public Schools

(CPS) sites. During the relevant period, Hayes was also a par-

ent of a child enrolled in CPS, which is operated by the Board

of Education of the City of Chicago.

During her time at Northwestern, Hayes repeatedly wrote

and endorsed criticisms of CPS on social media. In one post,

Hayes condemned CPS’s CEO for “contradictory statements”

about school breaks. In another post, Hayes denigrated CPS’s

No. 24-2890 3

student information system using the phrase “#aspensucks.”

In yet another, she commented on an article about a CPS

school by asking, “it’s like, which CPS school will have a scan-

dal this week?” Hayes also pointed out that state and federal

officials “ha[d] given [CPS] a no-confidence vote on protect-

ing kids from sexual abuse and ensuring special education

students’ needs are met.” As a final example, Hayes circulated

a petition calling for CPS to expand its investigation of and

reporting on racial inequities in the school district.

At least one CPS school principal saw Hayes’s posts and

shared them with CPS’s Chief Talent Officer, Matthew Lyons.

Soon after, on February 22, 2020, Lyons emailed Timothy

Dohrer, Hayes’s direct supervisor, and David Figlio, then

Dean of Northwestern’s School of Education and Social Pol-

icy. In the email, Lyons expressed concern about “Hayes’ so-

cial media usage and the impact that it [was] having on CPS.”

He claimed that Hayes’s posts the past several months were

interfering with CPS and Northwestern’s work by “dis-

parag[ing] CPS and question[ing] the motives and compe-

tence of [CPS’s] leadership.” Nevertheless, Lyons acknowl-

edged Hayes’s “undisputed rights to express” her views and

that she “[wa]s entitled to her opinions.” Lyons concluded his

email: “I will leave this in your hands to address as you be-

lieve appropriate.”

According to Lyons’s email, “several CPS principals” had

brought Hayes’s social media activity to his attention. Two

days later, when Dohrer responded asking Lyons how many

principals had viewed Hayes’s posts, Lyons replied: “[T]he

harm here is admittedly hard to quantify, other than a hand-

ful of principals.” In that same email, Lyons added that he did

not “think this [was] a termination-worthy issue.” Lyons later

4 No. 24-2890

testified at his deposition that he was unaware of how many

people saw Hayes’s posts and that only one principal had

reached out to him about Hayes’s social media activity.

Five days after Lyons’s initial email, Dohrer requested

permission to fire Hayes. He cited her social media posts and

how they impaired the partnership between CPS and North-

western. Before this, Hayes’s job performance at Northwest-

ern had been rated consistently as “excelling.” Approxi-

mately two weeks after firing Hayes, Dohrer informed Lyons

and apologized for Hayes’s conduct.

Hayes sued Lyons and the Board for retaliating against

her for activity protected by the First Amendment (Count I),

conspiracy to violate her First Amendment rights (Count II),

tortious interference with prospective economic gain (Count

III), and conspiracy to commit tortious interference (Count

IV). The district court granted summary judgment to the de-

fendants on the last three counts. The court denied summary

judgment on the first count—First Amendment retaliation—

for three reasons. One, as to the Board specifically, the court

found there was a genuine issue of fact about whether Lyons

had final policymaking authority for purposes of the Board’s

municipal liability for Lyons’s actions under Monell v. Depart-

ment of Social Services, 436 U.S. 658 (1978). Two, the court rea-

soned that there was a triable issue as to whether Lyons’s

email to Hayes’s supervisors constituted an actionable retali-

atory threat. Three, the court held that Lyons is not protected

by qualified immunity because the law clearly established

“that sending a threatening email to an individual’s employer

seeking to chill the employee’s speech violated the em-

ployee’s constitutional rights.” Hayes v. Bd. of Educ. of City of

Chicago, No. 21 Civ. 1198, slip op. at 4 (N.D. Ill. Sep. 26, 2024)

No. 24-2890 5

(citation omitted). Both Lyons and the Board appeal the dis-

trict court’s denial of qualified immunity to Lyons, and no

other aspect of the district court’s ruling.

II

We first address two jurisdictional issues: (1) whether we

can decide this interlocutory appeal of an order denying qual-

ified immunity; and (2) whether the Board is a proper party

to this appeal.

A. Whether this Appeal is a Proper Interlocutory Appeal

We address this first question because Hayes argues that

the district court’s denial of qualified immunity to Lyons at

the summary judgment stage is not appealable. True, denials

of summary judgment generally are nonappealable interlocu-

tory orders. See Ortiz v. Jordan, 562 U.S. 180, 188 (2011). But

where the denial of qualified immunity at summary judg-

ment turns exclusively on issues of law, that decision is im-

mediately appealable. Id. (“[I]mmediate appeal from the de-

nial of summary judgment on a qualified immunity plea is

available when the appeal presents a ‘purely legal issue.’” (ci-

tation modified)); see also Johnson v. Jones, 515 U.S. 304, 319–20

(1995) (“[A] defendant … may not appeal a district court’s

summary judgment order insofar as that order determines

whether or not the pretrial record sets forth a ‘genuine’ issue

of fact for trial.”). This is “[b]ecause qualified immunity pro-

tects the public officer from the expense and distraction of

having to stand trial when the conduct in question did not vi-

olate clearly established law.” Bayon v. Berkebile, 29 F.4th 850,

853 (7th Cir. 2022). Therefore, “‘the unavailability of an imme-

diate interlocutory appeal’ would take away the very benefit

that qualified immunity was created to provide.” Id.

6 No. 24-2890

To determine whether the denial of qualified immunity

turns exclusively on issues of law, we examine whether the

district court’s order “identifies factual disputes as the reason

for denying qualified immunity” and examine whether the

parties’ filings “adopt the plaintiff’s facts.” Flowers v. Renfro,

46 F.4th 631, 634 (7th Cir. 2022). So long as the appeal assumes

the plaintiff’s facts and raises purely legal issues, then we

have jurisdiction to hear the appeal. Jones v. Clark, 630 F.3d

677, 679–80 (7th Cir. 2011) (noting that appellate jurisdiction

is proper where the defendant “concede[s] for purposes of the

appeal that the plaintiff’s version of the facts is correct,” or

“accept[s] the district court’s view that there are factual dis-

putes but take[s] each disputed fact in the light most favorable

to the plaintiff” and “focus[es] exclusively on legal ques-

tions”).

Hayes argues the denial of qualified immunity is not ap-

pealable in this case because the district court found that is-

sues of material fact precluded summary judgment. Tellingly,

the portion of the district court order that Hayes relies on for

support is the section where the district court exclusively con-

sidered the First Amendment retaliation claim. In that section,

which does not mention qualified immunity, the district court

found that “[w]hether Lyons’s communications with North-

western were—in actuality—a threat, constitutes a genuine is-

sue of material fact necessitating trial.” Hayes, slip op. at 3.

The district court separately considered Lyons’s qualified

immunity defense. That portion of district court’s order

stated, in relevant part:

Plaintiff argues that Seventh Circuit caselaw

clearly establishes that even petty harassment

could amount to First Amendment retaliation.

No. 24-2890 7

… Plaintiff’s argument and citations to support-

ing caselaw are sufficient, at this stage, to show

that the law was clearly established: a reasona-

ble public official in Defendant Lyons’s shoes

would have understood that sending a threat-

ening email to an individual’s employer seeking

to chill the employee’s speech violated the em-

ployee’s constitutional rights. … Accordingly,

Defendant Lyons is not protected by qualified

immunity.

Id. at 4. This language demonstrates that the district court de-

nied Lyons’s qualified immunity defense as a matter of law,

as opposed to based on an issue of disputed fact. See Plumhoff

v. Rickard, 572 U.S. 765, 772 (2014) (quoting Johnson, 515 U.S.

at 313). In this portion of the district court’s order, the court

assumed that Lyons’s conduct constituted an actionable

threat and denied qualified immunity while acknowledging

in the prior section that factual issues precluded a decision on

the underlying First Amendment claim.

The nature of the defendants’ arguments on appeal also

confirms that this is a proper interlocutory appeal raising a

purely legal issue. Rather than making “a back-door effort to

contest the facts” on appeal, the Board and Lyons fully adopt

Hayes’s facts. Jones, 630 F.3d at 680. Defendants clearly said

so in their appellate briefs, stating that they “w[ould] not con-

test” the district court’s “version of the facts.” They were even

clearer at oral argument, saying that they “[we]re not asking

the court to determine any factual dispute,” and expressly re-

serving discussion of “all of the factual disputes that [oppos-

ing] counsel spoke of or that were identified by the district

court … [for] when and if [they] get back before the district

8 No. 24-2890

court.” As we discuss in Part III below, the defendants then

argue exclusively that Lyons was entitled to qualified immun-

ity as a matter of law, without relying on any disputed facts.

All of the above confirms our jurisdiction. Cf. Stewardson v.

Biggs, 43 F.4th 732, 737 (7th Cir. 2022) (finding we lacked ju-

risdiction because the officer’s arguments were “inseparable

from the questions of fact identified by the district court”) (ci-

tations and quotations omitted); White v. Gerardot, 509 F.3d

829, 834–36 (7th Cir. 2007) (finding we lacked jurisdiction be-

cause the officer “advance[d] no legal arguments purporting

to show that he [wa]s entitled to qualified immunity based

upon” undisputed facts).

B. Whether the Board is a Proper Party on Appeal

Before oral argument, we asked the parties to address the

Board’s continued presence on appeal. See 24-2890, Dkt. 3. The

grounds for jurisdiction over the Board’s appeal were not im-

mediately apparent because the defendants only appealed the

district court’s denial of Lyons’s qualified immunity defense,

which is a personal defense unavailable to units of govern-

ment like the Board. See Hernandez v. Sheahan, 455 F.3d 772,

776 (7th Cir. 2006). Despite conceding that qualified immunity

defenses are personal, the Board argues that it should be per-

mitted to appeal to avoid the risk of inconsistent verdicts and

because it would have to indemnify Lyons for any damages

awarded. We find neither argument persuasive.

For its inconsistent-verdict argument, the Board relies on

principles derived from City of Los Angeles v. Heller, 475 U.S.

796 (1986) (per curiam). There, the plaintiff brought constitu-

tional claims against individual police officers and the city un-

der Section 1983. Id. at 797. At a bifurcated trial against one of

the officers, the jury found that the officer was not personally

No. 24-2890 9

liable for the constitutional claims. Id. at 797–98. With the of-

ficer gone, the trial court dismissed the claim against the city,

reasoning that “if the police officer had been exonerated by

the jury there could be no basis for assertion of liability.” Id.

at 798. The Ninth Circuit reversed that judgment, believing

that the jury could have simultaneously found for the officers

on the personal liability claim while also finding that the city

was liable under Monell for the unconstitutional policies that

the officers implemented. Id. The Supreme Court reversed the

Ninth Circuit. Id. at 799. The Court held that “[i]f a person has

suffered no constitutional injury at the hands of the individ-

ual police officer, the fact that the departmental regulations

might have authorized the use of constitutionally excessive

force is quite beside the point.” Id.

Our court has interpreted Heller “narrow[ly]” as holding

only that “a municipality can be held liable under Monell,

even when its officers are not, unless such a finding would

create an inconsistent verdict.” Thomas v. Cook Cnty. Sheriff's

Dep't, 604 F.3d 293, 305 (7th Cir. 2010). In Thomas, we

acknowledged that individual public officials may avoid lia-

bility for a host of reasons that do not implicate Heller. Id. at

304–05. Plaintiffs may, even in the exercise of due diligence,

sue the wrong officials. Id. at 305. Or officials may succeed on

an affirmative defense like good faith, which excuses the offi-

cials from liability despite their concession that the plaintiff’s

rights were violated. Id. at 304. Under such circumstances, a

verdict against the municipality on the Monell claim would

not be inconsistent because “one c[ould] still argue that the

City’s policies caused the harm, even if the officer was not in-

dividually culpable.” Id.

10 No. 24-2890

From this, defendants argue that an inconsistent verdict

would follow here if we were to find that Lyons was entitled

to qualified immunity. On remand, they argue, the district

court would be left with a surviving unappealable Monell

claim (unappealable on an interlocutory basis, that is) based

on the very same conduct by Lyons that this court would have

decided is entitled to immunity.

We disagree. Lyons’s conduct is relevant to Hayes’s claim

against him and, separately, Hayes’s claim against the Board

premised on Lyons’s role as a policymaker. Qualified immun-

ity would absolutely absolve Lyons of liability for his actions

in his individual capacity. But it would have no effect on the

Board’s liability for Lyons’s unconstitutional actions as a CPS

policymaker. Accordingly, defendants’ fear of an inconsistent

verdict would only come to fruition if we concluded that Ly-

ons’s conduct did not violate Hayes’s First Amendment right

at all (because the Board would then be subject to a jury ver-

dict about conduct that was actually constitutional). And be-

cause defendants explicitly disclaimed any argument on the

first prong of qualified immunity, we assume without decid-

ing that Lyons’s conduct violated the Constitution.

Moreover, our review of the district court’s denial of Ly-

ons’s qualified immunity defense is not “inextricably inter-

twined” with Hayes’s claim against the Board. Swint v. Cham-

bers Cnty. Comm'n, 514 U.S. 35, 51 (1995) (holding that the

court of appeals lacked jurisdiction over a county commis-

sion’s appeal because the district court’s decision about the

commission’s liability was not inextricably intertwined with

the court’s decision to deny individuals qualified immunity).

Nor is our review of Hayes’s claim against the Board neces-

sary to ensure meaningful review of the court’s denial of

No. 24-2890 11

Lyons’s qualified immunity defense. Id. Thus, we are assured

that we do not run the risk of causing inconsistent verdicts

here.

We are similarly unpersuaded by the Board’s argument

that it is a proper party on appeal because of its obligation to

indemnify Lyons for any damages. This is not to say that the

Board’s argument is frivolous. Indeed, there may be some

merit to the notion that an indemnification obligation consti-

tutes a financial stake in the appeal sufficient for jurisdiction.

Cf. Principal Mut. Life Ins. Co. v. Cincinnati TV 64 Ltd. P’ship,

845 F.2d 674, 677 n.1 (7th Cir. 1988) (“The general rule is that

a party may only appeal to protect its own interests, and not

those of a nonparty or another party, unless the appellant has

a direct financial stake in the appeal.”). On the other hand,

qualified immunity is a personal defense designed to “protect

the finances of public officials whose salaries do not compen-

sate them for the risks of liability under vague and hard-to-

foresee constitutional doctrines.” See Hernandez, 455 F.3d at

776. Because we have said that the same concerns do not exist

in suits against the government, see id., it is not intuitive that

the government is entitled to appeal based on an indemnifi-

cation obligation.

That said, we do not need to decide whether an indemni-

fication obligation is sufficient to confer jurisdiction because,

as discussed below, we conclude that Lyons is entitled to

qualified immunity and therefore does not need to be indem-

nified. As such, the Board is not a proper party to this appeal

and is dismissed as a party.

12 No. 24-2890

III

With our jurisdiction secure, we turn to the merits of Ly-

ons’s appeal. We review the summary judgment decision de

novo and take the facts in the light most favorable to Hayes

as the non-moving party. See Taylor v. Schwarzhuber, 132 F.4th

480, 486 (7th Cir. 2025). Although Hayes is the non-movant,

she bears the burden of our qualified immunity analysis and

therefore must identify a constitutional right she contends Ly-

ons violated and case law that clearly establishes that right.

Green v. Newport, 868 F.3d 629, 633 (7th Cir. 2017) (citing Ash-

croft v. al-Kidd, 563 U.S. 731, 735 (2011)).

Although we decide the issue at the second step of the

qualified immunity analysis (did case law clearly establish

Lyons would be violating Hayes’s constitutional right?), that

step necessarily requires us to discuss the right at issue. See al-

Kidd, 563 U.S. at 735 (noting that courts “have discretion to

decide which of the two prongs of qualified-immunity analy-

sis to tackle first”); Pearson v. Callahan, 555 U.S. 223, 236 (2009)

(“[I]t often may be difficult to decide whether a right is clearly

established without deciding precisely what the existing con-

stitutional right happens to be.”) (citations and quotations

omitted). Accordingly, we begin at the first step of the quali-

fied immunity analysis (did Lyons violate a statutory or con-

stitutional right?).

At the first step, Hayes argued, and the district court

found, that individuals enjoy a First Amendment right to be

free from a public official’s “retaliatory speech … intimating

that punishment, sanction or adverse regulatory action will

imminently follow.” Hayes, slip op. at 3 (citing Hutchins v.

Clarke, 661 F.3d 947, 956 (7th Cir. 2011)). The district court held

No. 24-2890 13

that, on the merits, there was a dispute of fact about whether

Lyons’s emails constituted retaliatory speech.

On appeal, Lyons assumes without conceding or challeng-

ing the district court’s construction of the constitutional right

at issue, that Hayes wins at the first step of the qualified im-

munity analysis. Lyons then exclusively argues that he is en-

titled to qualified immunity in any event because—at the sec-

ond step—he had no reason to know that his actions would

violate the Constitution. Given Lyons’s position, we assume

without deciding that his emails could be construed as a vio-

lation of Hayes’s First Amendment right to free speech. We

therefore limit our review to whether the specific contours of

the right, as defined by the district court, were clearly estab-

lished at the time Lyons complained to Northwestern about

her speech. See generally United States v. Sineneng-Smith, 590

U.S. 371, 375 (2020) (observing the principle of party presen-

tation).

To determine whether the right at issue was clearly estab-

lished, we must look to “all relevant precedents—both those

cited by the parties and those we discover ourselves.” Taylor,

132 F.4th at 487 (citations and quotations omitted). From

there, we consider whether the “contours of the right” were

“sufficiently clear that a reasonable official would understand

that what he [wa]s doing violate[d] that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). This requires a comparison

of “the specific context of the case” to the clearly established

law at the time. Saucier v. Katz, 533 U.S. 194, 201 (2001), over-

ruled on other grounds by Pearson v. Callahan, 555 U.S. 223

(2009). Following these steps leads us to conclude that Hayes

cannot overcome Lyons’s qualified immunity defense. See

Anderson, 483 U.S. at 640.

14 No. 24-2890

To clearly establish a right, “[t]he relevant precedent must

define the right with a ‘high degree of specificity,’ so that

‘every reasonable official would interpret it to establish the

particular rule the plaintiff seeks to apply.’” Zorn v. Linton,

146 S. Ct. 926, 930 (2026) (per curiam) (quoting District of Co-

lumbia v. Wesby, 583 U.S. 48, 63 (2018)). To meet her burden,

therefore, Hayes must proffer precedent that places “beyond

debate” the question of whether a public official’s emails to

its business partner complaining of the partner’s employee’s

speech constitute retaliatory threats or coercion in the first

place. Id. (“A right is not clearly established if existing prece-

dent does not place the constitutional question beyond de-

bate.”). The case must have defined the right such that Lyons

could have read the case before emailing Northwestern and

known that his conduct was unconstitutional. Id. None of the

cases Hayes relies on meet that standard.

We begin with Hutchins v. Clarke, which the district court

cited in its judgment. The plaintiff in Hutchins had called in to

a local radio show and made several statements disparaging

his superior, the county’s sheriff. 661 F.3d at 950. The sheriff

later called in to the same show and stated that the plaintiff

was bitter and had been disciplined for sexually harassing an-

other employee. Id. Before reaching our holding, we acknowl-

edged that public officials cannot retaliate against protected

speech by using “threatening, harassing, or intimidating”

speech that suggests punishment “will imminently follow.”

Id. at 956 (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676,

687 (4th Cir. 2000)). Although we affirmed this right, we con-

cluded that the sheriff did not violate the Constitution be-

cause his comments “pertain[ed] to a past disciplinary action

and in no way intimate[d] any future disciplinary action

against Hutchins.” Id. Additionally, the sheriff’s comments

No. 24-2890 15

were not so embarrassing or ridiculing as to violate the First

Amendment. Id. at 957 (citing Bart v. Telford, 677 F.2d 622, 625

(7th Cir. 1982)).

As Hayes sees it, Hutchins is clearly established precedent

from nearly a decade before Lyons’s email showing that Ly-

ons’s conduct was unlawful. But Hutchins undermines

Hayes’s position. For one thing, the sheriff’s conduct in

Hutchins was arguably more harmful than Lyons’s conduct

yet we ultimately judged that conduct constitutional. The

sheriff publicly lambasted his subordinate in retaliation for

the subordinate’s speech; Lyons directly notified Hayes’s su-

pervisors about her posts and his concerns. And although

Northwestern ultimately fired Hayes, Lyons at no point

urged that course of action. Rather, Lyons wrote that he “will

leave this in [Hayes’s supervisors’] hands to address as [they]

believe appropriate” and he later added that he did not “think

this [was] a termination-worthy issue.” Given the important

differences between the facts of Hutchins and the instant case,

Hutchins did not put Lyons on notice that his criticisms of

Hayes’s speech as a public official were unlawful.

Hayes relies on two other decisions predating Lyons’s

conduct, Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) and

Backpage.com, LLC v. Dart, 807 F.3d 229, 231 (7th Cir. 2015),

that are similarly inapposite.

In Bantam Books, a public commission issued letters to

book publishers and distributors “reminding” them of the

commission’s legal obligation to refer those selling obscene

materials to minors for criminal prosecution. 372 U.S. at 62.

The commission also informed publishers that the commis-

sion had sent lists of “objectionable publications” to local po-

lice departments. Id. at 62–63. The Supreme Court enjoined

16 No. 24-2890

the commission, finding that their conduct amounted to an

unlawful “system of informal censorship” that threatened

“invoking legal sanctions and other means of coercion, per-

suasion, and intimidation.” Id. at 67, 69, 71.

Backpage.com involved a similar government scheme.

There, as in Bantam Books, the county sheriff sent letters on

official letterhead to credit card companies “request[ing] that

[they] immediately cease and desist from allowing [their]

credit cards to be used to place ads on websites like Back-

page.com,” an internet company that published classified

adult advertisements. 807 F.3d at 231; see also id. at 230. The

sheriff also implied in his letter that credit card companies

could be prosecuted for their failure to comply with state and

federal laws against human trafficking and money launder-

ing if they continued to do business with the company. Id. at

232. A memo drafted by one of the sheriff’s staff revealed the

letters were bare “threats in the form of ‘reminders.’” Id. Back-

page.com brought a First Amendment claim, and we held the

sheriff’s conduct violated the plaintiff’s First Amendment

rights by “us[ing] his office as sheriff to intimidate the credit

card companies.” Id. at 237.

Even viewing the facts in the light most favorable to

Hayes, Bantam Books and Backpage.com’s facts are not suffi-

ciently analogous to have placed Lyons on notice that his con-

duct constituted unlawful retaliation. His conduct was a far

cry from the defendants’ conduct in those two cases. Unlike

the state commission in Bantam Books and the sheriff in Back-

page.com, Lyons did not threaten Hayes or Northwestern with

prosecution or other comparable legal sanction. Instead, as

we stated earlier, Lyons dispelled the notion that he was

No. 24-2890 17

directing Hayes’s supervisors to terminate her and he af-

firmed Northwestern’s independence in addressing the issue.

Additionally, we explained in Backpage.com that when

considering similar challenges to government speech, “[w]hat

matters is the distinction between attempts to convince and

attempts to coerce.” Id. (quoting Okwedy v. Molinari, 333 F.3d

339, 344 (2d Cir. 2003) (per curiam)) (internal quotation marks

omitted). Lyons’s statements, when compared to the state-

ments in Backpage.com and Bantam Books, were not so clearly

attempts to coerce that Lyons is not entitled to qualified im-

munity. See al-Kidd, 563 U.S. at 741; Anderson, 483 U.S. at 640.

These fundamental factual differences mean that Lyons was

not on notice that his statements were unlawful.

Hayes relies on a final case, NRA of America v. Vullo, 602

U.S. 175 (2024), that we will not consider in our qualified im-

munity analysis because it was decided after Lyons emailed

Hayes’s supervisors. See City of Tahlequah v. Bond, 595 U.S. 9,

13 (2021) (per curiam) (holding that a case “decided after the

[conduct] at issue, is of no use in the clearly established in-

quiry”).

We end our discussion instead with Novoselsky v. Brown,

822 F.3d 342 (7th Cir. 2016), a case Lyons highlights in support

of his qualified immunity defense. There, a plaintiff who was

a lawyer filed multiple lawsuits against the court clerk’s of-

fice. In response, the clerk complained about the plaintiff to

the state bar, a private watchdog group, and the county board

of commissioners. Id. at 347–48. The clerk also issued a press

release and held a press conference to discuss the lawsuits. Id.

at 347. The plaintiff then sued the clerk herself, alleging that

she had violated his First Amendment rights by retaliating

against him. Id. at 346. In assessing the clerk’s qualified

18 No. 24-2890

immunity defense, we found that, even assuming that the

plaintiff’s speech was protected by the First Amendment, the

clerk’s conduct did not constitute actionable retaliation. Id. at

356–57. On this, we said that “[u]nconstitutional retaliation by

a public official requires more than criticism or even condem-

nation,” and “[h]owever impolitic” the clerk’s statements

may have been, they “did not rise to the level of threat, coer-

cion, intimidation, or profound humiliation.” Id.

We granted qualified immunity in Novoselsky because we

concluded that the clerk’s conduct did not violate the plain-

tiff’s constitutional right—the first step of qualified immunity

analysis. As discussed above, Lyons elected to challenge the

district court’s decision at only the second step of qualified

immunity. Thus, we cannot say that Lyons is entitled to qual-

ified immunity for the same reasons as the clerk in Novoselsky.

However, Novoselsky is relevant to our second-step inquiry

into whether any prior caselaw clearly established the uncon-

stitutionality of Lyons’s actions. And as we see it, Novoselsky,

like Backpage.com and Bantam Books, did not put Lyons on no-

tice that his conduct would violate Hayes’s constitutional

right. Accordingly, Hayes cannot meet her burden necessary

to overcome Lyons’s qualified immunity defense.

IV

For these reasons, we DISMISS the Board from this appeal,

REVERSE the decision of the district court and REMAND for

further proceedings consistent with this opinion. Because de-

fendants’ appeal is not frivolous, we also DENY Hayes’s mo-

tion for sanctions under Federal Rule of Appellate Procedure

38.