By GRACE BARBIC

gbarbic@lawbulletinmedia.com

A former Illinois State University football coach can pursue claims that his First Amendment rights were violated when he was demoted from his position for hanging a poster on his office door stating "All Lives Matter."

Kurt Beathard sued former ISU athletic director Larry Lyons and current head football coach Brock Spack over his termination as offensive coordinator in 2020 on what he claimed to be pretextual grounds.

Lyons and Spack argued on appeal that they are entitled to dismissal of the complaint on the basis of qualified immunity.

A panel of the 7th U.S. Circuit Court of Appeals dismissed the appeal Thursday, finding that it lacks jurisdiction over it.

Circuit Judge Ilana Diamond Rovner wrote for the panel.

"Because the district court concluded that factual development was in order before it could resolve the question of qualified immunity, we dismiss the appeal for want of appellate jurisdiction," Rovner wrote.

Beathard was the football team's offensive coordinator in July 2020. He held the position for the school in 2014, 2015, 2018 and 2019. His breaks in employment were related to his late wife's illness.

In the late summer and early fall of 2020, there was tension and unrest on the ISU campus related to the death of George Floyd, a Black man killed by a white police officer in May of that year in Minneapolis, Minnesota.

As a result, some football players were threatening to boycott practice, according to court documents.

The athletic department had posters printed in support of the Black Lives Matter movement, which featured pictures of ISU student athletes and included "#Black- L i v e s M a t t e r. "

Several football coaches placed the poster on their office doors. An unknown person placed the poster on Beathard's door as well, which he removed.

He replaced the poster with a handwritten message stating, "All Lives Matter to Our Lord & Savior Jesus Christ."

Beathard alleged that another coach, who he claimed had hoped to replace him as offensive coordinator, took a picture of his poster and shared it with the team.

Some players allegedly found the message offensive and threatened to continue boycotting practices.

Meanwhile, during a Zoom address to all ISU student athletes regarding the boycotting of practices, Lyons said "All [ISU] Redbird Lives Matter." This caused further issues with the student athletes, which led to Lyons announcing his retirement the following month.

On Aug. 29, 2020, Spack asked Beathard to remove his "All Lives Matter" poster from his office door and he complied.

On Sept. 1, 2020, Spack told Beathard that he was "in trouble" because of that message. The following morning, Spack removed Beathard from his position because he didn't "like the direction of the offense," documents stated. Spack assigned Beathard to research other university teams' COVID-19 practices.

When his contract expired at the end of 2020, it was not renewed, ending his employment with the university.

Beathard sued Lyons and Spack in federal court, alleging he was improperly demoted due to the exercise of his free speech rights.

He argued the message he posted on his office door was personal speech protected by the First Amendment and not official speech associated with his job responsibilities.

Lyons and Spack filed a motion to dismiss the complaint, arguing the complaint did not set forth a viable First Amendment claim and also that they are entitled to qualified immunity.

U.S. District Court Judge James E. Shadid of the Central District of Illinois denied the motion without resolving the invocation of qualified immunity.

On appeal, Lyons and Spack argued they are entitled to qualified immunity because it would not have been clear to them in the Fall 2020 that Beathard's speech was protected as personal rather than official speech, citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

They also argued it would not have been clear that they could not discharge Beathard based on the disruption his speech fomented among team players, citing Pickering v. Bd. of Educ. of Tp. High Sch. Dist. 205, 391 U.S. 563 (1968).

Under Pickering analysis, a teacher's right to comment on matters of public concern must be balanced against the state's interest in the efficiency of the public services it provides through its employees, documents stated.

The district court found it premature to engage in the Pickering analysis at the pleading stage of the case.

The panel noted that an order postponing a decision on qualified immunity ordinarily is not appealable, citing Khorrami v. Rolince, 539 F.3d 782 (7th Cir. 2008).

However, Lyons and Spack suggested the decision in Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 667 (7th Cir. 2012), "cabined" Khorrami and allowed appeals of orders postponing decisions on qualified immunity in addition to those denying qualified immunity.

The panel disagreed.

The Abelesz court held that appellate jurisdiction over denial of motion to dismiss based on foreign sovereign immunity defense did not support pendent appellate jurisdiction over rejection of separate statute of limitations defense.

Rovner found the district court's language in its order made clear the court did not think it was advisable to address qualified immunity with only the allegations of Beathard's complaint to inform its assessment.

Lyons and Spack argued the disruption that Beathard's speech incited among team members gave them the cause needed to remove him from as offensive coordinator.

Alternatively, they argued it gave them at least enough cause to be shielded by qualified immunity for his discharge.

Rovner found the complaint gave nothing concrete about the impact that Beathard's message had on players nor how that factored into the decision to remove him from his position.

"In these circumstances, it was reasonable for the district court to conclude that it required more information about the defendants' rationale for terminating Beathard before assessing whether the discharge decision was consistent with Pickering and, if not, whether that would have been clear to the defendants when they removed Beathard as offensive coordinator, " Rovner wrote.

Rovner cited Roldan v. Stroud, 52 F.4th 335, 339 (7th Cir. 2022) in stating that "in some cases, the fact-intensive nature of the claim means that resolution of a qualified immunity defense must await factual development."

The panel found the district court reasonably understood this to be the case in reaching its decision.

The other panel members included Circuit Judges Frank H. Easterbrook and Candace Jackson-Akiwumi.

Beathard is represented by South Carolina attorney Douglas A. Churdar of Churdar Law Firm and Adam W. Ghrist of Finegan Rinker & Ghrist in Bloomington, Illinois.

"Kurt is encouraged by the Court's ruling," Churdar said in a written statement. "It's been more than four years since he lost his job over a poster. He looks forward to moving his case toward trial."

Lyons and Spack are represented by Peter G. Land, Mary E. Deweese and Michael T. Raupp of Husch Blackwell LLP. They could not be reached for comment.

The case is Kurt Beathard v. Larry Lyons, et al., No. 22-2583.