A federal appeals panel awarded a narrow legal win to a former Illinois State University football coach who said posting a sign reading “All Lives Matter to Our Lord & Savior Jesus Christ” on his office door cost him his job in 2020, allowing him to continue suing the university over his demotion and ultimate removal, allegedly in violation of his constitutional rights.
Kurt Beathard was the Redbirds’ offensive coordinator heading into the 2020 season. In August, athletic department employees printed posters featuring athletes in ISU uniforms and the Black Lives Matter slogan. Beathard said he doesn’t know who put the sign outside his door, but he replaced it with his handwritten sign that was in place for about two weeks.
Due to Covid mitigations, athletes weren’t allowed in the office area, but Beathard alleged another coach who sought his position shared a picture of the sign with players who responded by threatening to continue an ongoing practice boycott.
Head Coach Brock Spack removed Beathard as offensive coordinator on Sept. 2, telling him Athletic Director Larry Lyons would assign him to a new task. ISU did not renew Beathard’s contract when it expired at the end of 2020. Beathard sued Lyons and Spack, alleging his demotion improperly resulted from a protected exercise of First Amendment rights.
In seeking dismissal before U.S. District Judge James Shadid, Lyons and Spack said qualified immunity should protect them from litigation because they wouldn’t have understood at the time of their decision that the handmade sign constituted personal speech rather than official conduct from a public employee. They also said they wouldn’t have understood they couldn’t reassign a coordinator based on the way the players reacted to the message.
Although Shadid rejected the motion to dismiss, he did so without considering the qualified immunity defense. Shadid invoked a 2022 U.S. Supreme Court opinion, Kennedy v. Bremerton School District, which involved a coach fired for praying on the field after a game and held the prayer to be private conduct rather than official speech.
Shadid said Beathard “was expressing his personal views, which in no way owed their existence to his responsibilities as a public employee. Plaintiff was not paid by the university to decorate his door or to use it to promote a particular viewpoint, he was employed to coach football.”
Spack and Lyons asked the U.S. Seventh Circuit Court of Appeals to intervene, arguing the panel has jurisdiction to review interlocutory orders that reject qualified immunity defenses.
Seventh Circuit Judge Frank Easterbrook wrote the panel’s opinion on that request, filed Feb. 27; Judges Ilana Rovner and Candace Jackson-Akiwumi concurred.
The panel agreed such an order would be appealable, but held Shadid’s ruling wasn’t a denial of the defense but a postponement of a decision pending further development of the argument at the trial stage.
The relevant history includes two Seventh Circuit opinions: a 2008 ruling, Khorrami v. Rolince, specifically holding orders postponing qualified immunity decisions can’t be appealed unless the delay is so long as to be considered a de facto denial; and 2012’s Abelesz v. Magyar Nemzeti Bank, which Spack and Lyons said “cabined Khorrami and allowed appeals of orders postponing decisions on qualified immunity in addition to those denying qualified immunity,” Easterbrook wrote.
“We do not read Abelesz that way," he said.
In Abelesz, Easterbrook said, the panel determined it had jurisdiction because it was satisfied the district judge denied motions to dismiss on the merits of sovereign immunity. But the panel noted Shadid’s writing in the ISU litigation “makes clear that the court did not think it advisable to address qualified immunity with only the allegations of Beathard’s complaint to inform its assessment.”
Easterbrook highlighted Shadid’s use of the phrase “a more fully developed record” which the panel found “leaves no doubt (Shadid) did not believe this was a case in which the defense could be evaluated based on the face of the complaint, but rather that further development was necessary before it could properly assess qualified immunity. Nowhere in its order did the court otherwise suggest that Beathard had either pleaded enough to overcome qualified immunity or had instead pleaded himself out of court by making allegations that left no doubt that the defendants were entitled to qualified immunity.”
The panel also noted Shadid’s denial of the dismissal motion didn’t foreclose the argument a public employer can punish a worker for personal speech. Rather Shadid found it too early in the process to determine whether Beathard could prove the speech was protected because it addressed a matter of public concern.
“Beathard himself disputes the notion that his speech resulted in substantial disruption among the team’s players,” Easterbrook wrote. “The complaint tells us nothing concrete about the impact that Beathard’s message had on team players and how that factored into the university officials’ decision to remove him as offensive coordinator.”
Ultimately, the panel concluded it had no jurisdiction to consider the appeal and dismissed, leaving Beathard’s complaint active in federal district court.
An Illinois State University spokesperson said the university does not comment on active litigation.