Outspoken Professor Has No Case for Defamation

     CHICAGO (CN) – Northeastern Illinois University did not defame and retaliate against a professor involved in anti-war protests and other causes, the 7th Circuit ruled.
     Loretta Capeheart is a tenured justice studies professor who also served as the adviser of the Anti-War Club and Socialist Club at Northeastern Illinois University.
     In 2006, Capeheart joined a group of Anti-War Club students trying to physically block military recruiters from entering a school-sponsored job fair. Though Capeheart eventually left the protest at the request of university police, several students who remained had to reimburse the registration fees of employers who were unhappy with the disturbance.
     Later, when two members of the Socialist Club were arrested for another job fair protest, Capeheart advocated loudly on their behalf to police and university administrators.
     At a faculty meeting, Vice President of Student Affairs Melvin Terrel allegedly ignored Capeheart’s complaints and retorted 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.”
     Noting that the stalking incident was later deemed groundless, Capeheart complained to the affirmative action office. She explained that the allegations arose from a student who said Capeheart had chased her while handing out fliers.
     Capeheart also clashed with university provost Lawrence Frank over the recruitment of Latino faculty, a point she made vocally while sitting on a panel before the Illinois Legislative Latino Caucus.
     She filed suit in the Northern District of Illinois, claiming that that she was defamed, that Frank passed her over for the job of Justice Studies department head, and that Frank was responsible for denying her a Faculty Excellence Award.
     The complaint alleged violations her First Amendment rights as well as Illinois law. Capeheart requested an injunction against further violations and to be made chair of the department.
     When the university moved for summary judgment, Capeheart withdrew her request to be made chair. U.S. District Judge Blanche Manning nonetheless ruled in favor of Northeastern Illinois University.
     On appeal, the 7th Circuit determined that Manning had gone too far by reaching the merits of Capeheart’s claims.
     “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,” Judge John Tinder wrote for a three-member panel.
     “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,” she added. “Students did things she did not like. Terrell is a major player in her story, but he retired four years ago.”
     The court found no evidence that Capeheart would continue to endure retaliation for her views, regardless of whether such retaliation had happened before. As a result, an injunction would be inappropriate.
     “In sum, we recognize that Capeheart’s retaliation claims are serious, and our intention is not to belittle them,” Tinder wrote. “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.”
     Capeheart had also sought an injunction blocking a policy that would limit on-campus demonstrations. The court denied this request as well, finding that the policy, which was never enacted, is too remote to warrant an injunction.
     “Although it is often appropriate to consider a pre-enforcement challenge to a law or policy that is either in force or once was… the same cannot be said about a pre-enactment challenge,” Tinder wrote.
     University President Sharon Hahs “proposed the challenged policy, it was circulated as a proposal, criticized, and withdrawn,” the decision states.
     “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,” Tinder added.
     The 7th Circuit also affirmed Manning’s decision not to entertain Capeheart’s state-law claims.

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