Kurt Beathard v. Larry Lyons

                              In the

    United States Court of Appeals
                 For the Seventh Circuit
                    ____________________
   No. 22-2583
   KURT BEATHARD,
                                                 Plaintiff-Appellee,
                                  v.
   LARRY LYONS and BROCK SPACK,
                                           Defendants-Appellants.
                           ____________
              Appeal from the United States District Court
                    for the Central District of Illinois.
          No. 1:21-cv-01352-JES-JEH — James E. Shadid, Judge.
                           ____________
      ARGUED APRIL 9, 2024 — DECIDED FEBRUARY 27, 2025
                           ____________
   Before EASTERBROOK, ROVNER, and JACKSON-AKIWUMI,
Circuit Judges.
    ROVNER, Circuit Judge. In this section 1983 action, plaintiff
Kurt Beathard alleges that he was discharged from his position as a university football coach at Illinois State University
(“ISU”) as a result of personal speech, protected by the First
Amendment, that he had posted on the door to his office. See

. The defendants contend that they are entitled to dismissal of the complaint pursuant to Fed. R. Civ. P.
2                                                     No. 22-2583

12(b)(6) on the ground of qualified immunity, because it
would not have been clear to them in the Fall of 2020 that
Beathard’s speech was protected as personal rather than official speech, Garcetti v. Ceballos, 

 (2006), nor
would it have been clear that they could not discharge
Beathard based on the disruption his speech fomented among
team players, Pickering v. Bd. of Educ. of Tp. High Sch. Dist. 205,

 (1968). Because the district court concluded that
factual development was in order before it could resolve the
question of qualified immunity, see Beathard v. Lyons, 

, 783–84 (C.D. Ill. 2022), we dismiss the appeal
for want of appellate jurisdiction.
                                I.
   The following facts are derived from Beathard’s amended
complaint (hereinafter, the “complaint”), the allegations of
which we accept as true at this stage of the case. Nat’l Rifle
Ass’n of Am. v. Vullo, 

, 195 (2024).
     Beathard was engaged as the offensive coordinator for the
Illinois State University football team in July 2020. Beathard
had a 25-year history of coaching, and indeed he had worked
as offensive coordinator for ISU in 2014, 2015, 2018, and 2019.
Beathard’s previous engagements with ISU were successful:
his breaks in service were occasioned not by ISU’s dissatisfaction with his performance, but rather his late wife’s illness.
When Beathard returned to ISU in 2020, defendant Larry Lyons was the Athletic Director and Brock Spack was the head
football coach.
   In the late Summer and early Fall of 2020, there was tension and unrest on the ISU campus related to the death of
No.22-2583                                                               3

George Floyd, 1 and some of the players on the football team
were threatening to boycott team practice, resulting in the
cancellation of several practice sessions. In August, the athletic department had posters printed in support of the Black
Lives Matter movement. The posters featured photographs of
ISU student athletes and included the hashtag, “#BlackLivesMatter.”




R. 13 at 5 ¶ 20. Several football coaches placed the poster on
their own office doors, and an unknown person placed the
poster on Beathard’s door as well.




    1 Floyd, a black man, was asphyxiated by a white Minneapolis police

officer in May 2020 while he was being arrested on suspicion of passing a
counterfeit $20 bill. Cell-phone video recordings of his death sparked protests across the country in the ensuing weeks and months.
4                                                   No. 22-2583

    Beathard removed the poster from his office door and replaced it with a handwritten message stating, “All Lives Matter to Our Lord & Savior Jesus Christ.”




R. 13 at 6 ¶ 22. The message was on his office door for approximately two weeks. Although, due to the Covid-19 pandemic,
students were not allowed into the area of the coaches’ offices
at that time, Beathard alleges that another coach who hoped
to replace him as offensive coordinator photographed
Beathard’s message and shared it with team players. According to the complaint, “some” football players “apparently”
found the message offensive and threatened to continue boycotting practice sessions. R. 13 at 9 ¶¶ 33–34.
    The complaint represents that there is no university or athletics department policy regarding what employees may post
on their office doors. Faculty and staff at ISU, as at other universities, commonly decorate their office doors with posters,
No.22-2583                                                      5

cartoons, articles, and so forth that reflect their personal views
and beliefs.
    However, ISU does have a written anti-harassment and
non-discrimination policy which provides in relevant part
that “[e]ach member of the University community enjoys the
right to free speech. The right of free expression and the open
exchange of ideas stimulates debate, promotes creativity, and
is essential to a rich learning environment. … As members of
the University Community, students … and staff have a responsibility to respect others and show tolerance for opinions
that differ from their own … .” R. 13 at 10 ¶ 41.
    Meanwhile, athletic director Lyons placed himself into
difficulty during a Zoom address to ISU student athletes regarding the boycott problem when he said, “All [ISU] Redbird
Lives Matter.” R. 13 at 7 ¶ 25. That only fanned the flames of
discontent, and Lyons announced his retirement the following month.
    On or about August 29, head football coach Spack came to
Beathard’s office and asked him to remove the handwritten
“All Lives Matter” message from his office door. Beathard
complied. Days later, on September 1, following the cancellation of a team practice session, Spack told Beathard that he
was in trouble because of that message. R. 13 at 9 ¶ 34.
    On the following morning, September 2, Spack called
Beathard into his office and advised him that he was being
terminated from his position as offensive coordinator because
Spack didn’t “like the direction of the offense.” R. 13 at 9 ¶ 35.
Beathard alleges that this explanation was “100% pretext,” because Spack had previously complimented Beathard’s work.
R. 13 at 9 ¶ 35. Moreover, the team had not yet played a single
6                                                         No. 22-2583

game that year (nor, as it turned out, would it play at all in the
2020 season, due to the Covid-19 pandemic). Spack informed
Beathard that Lyons was involved in this decision and would
be in touch with him about a future assignment. Eventually,
Beathard was assigned to researching other university teams’
Covid-19 practices, which he characterizes as a make-work
task. (In the meantime, two other coaches had replaced him
as offensive coordinator.) When his contract expired at the
end of 2020, it was not renewed, ending his employment with
the university.
    Beathard filed this suit pursuant to section 1983 alleging
that he was improperly terminated as offensive coordinator
due to the exercise of his free speech rights. He contends that
the message he posted on his office door was personal speech
on a matter of public concern rather than official speech associated with his job responsibilities, and that as such, it was
protected by the First Amendment. Yet, he alleges, because
the defendants saw his message as being inconsistent with the
athletic department’s support of the Black Lives Matter movement, the defendants discharged him. 2
    Lyons and Spack filed a motion to dismiss the complaint
pursuant to Rule 12(b)(6), arguing that the complaint did not
set forth a viable First Amendment claim and also that they
are entitled to qualified immunity, because it would not have
been clear to them in the Fall of 2020 that a message posted on
Beathard’s office door was properly understood as personal
speech rather than official, government speech or that the


    2 Beathard named as a third defendant Kyle Brennan, who succeeded

Lyons as ISU’s athletic director. Brennan was named only in his official
capacity, however, and he is not a party to this appeal.
No.22-2583                                                      7

university could not discipline Beathard for the speech based
on the disruption it caused among members of the football
team.
    Judge Shadid denied the motion without resolving the defendants’ invocation of qualified immunity. 

. In the first instance, he concluded that the complaint
made out a viable claim that Beathard had been discharged
based on the exercise of his free speech rights. Relying in part
on the Supreme Court’s recent decision in Kennedy v. Bremerton School District, 

, 529–30 (2022), which held that
a high school football coach’s prayer on the playing field immediately after team football games was private rather than
official speech, the judge concluded that Beathard’s actions in
posting the handwritten message on his office door were not
taken in furtherance of his official job duties. See Garcetti, 

. “[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.” 620 F. Supp. 3d at
782 (cleaned up). And under ISU’s own anti-harassment and
non-discrimination policy, Beathard had the right to express
his personal viewpoint, within reason. Id. The judge went on
to find that Beathard had adequately alleged that his speech
was a motivating factor in his discharge. Id. at 782–83. Finally,
the judge noted that although under Pickering, 

,
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, this
is a highly fact-specific weighing that must occur on a developed record. 

 at 783 (citing Gustafson v. Jones, 

,
8                                                     No. 22-2583

909 (7th Cir. 2022)). The court found it premature to engage in
the Pickering analysis at the pleading stage of the case. 

    As to qualified immunity, Judge Shadid observed that “[i]t
is often not advisable … to consider qualified immunity at the
pleadings stage.” 

 Therefore, without saying anything further on the subject of qualified immunity, the Judge concluded by stating, “Defendant’s Motion to Dismiss is denied
… with respect to the issue of qualified immunity, with leave
to reassert on a more fully developed record.” Id. at 784.
                                II.
   Interlocutory orders, including denials of a motion to dismiss, ordinarily are not immediately appealable. See Lauro
Lines, s.r.l. v. Chasser, 

 (1989). With limited exceptions, the rule is that all claims of error must be raised in a
single appeal following the entry of final judgment. 

; see Firestone Tire & Rubber Co. v. Risjord, 

 (1981).
    Orders denying qualified immunity are one such exception to this rule. Lauro Lines, 

 (citing Mitchell v.
Forsyth, 

 (1985)). “[A]n order rejecting the defense of qualified immunity at either the dismissal stage or the
summary judgment stage is a ‘final’ judgment subject to immediate appeal.” Behrens v. Pelletier, 

 (1996)
(emphasis in original); McGee v. Parsano, 

, 570 (7th
Cir. 2022); Hanson v. LeVan, 

 (7th Cir. 2020)
(citing Mitchell, 

). Allowing review of such orders is consistent with the goal of sparing a public official
from the burden of defending a suit and standing trial when
the right he is accused of violating was not clearly established
at the time he acted. See Pearson v. Callahan, 

, 231–
No.22-2583                                                      9

32 (2009); Behrens, 516 U.S. at 305–06; Mitchell, 472 U.S. at 525–
26.
   By contrast, an order postponing a decision on qualified
immunity ordinarily is not appealable. Khorrami v. Rolince, 

 (7th Cir. 2008).
       Unless the district court delays so long in ruling
       that the delay becomes a de facto denial, a decision not to rule on a motion [to dismiss on
       grounds of qualified immunity] is just that: inaction. This follows from the general rule the
       Supreme Court has acknowledged forbidding
       interlocutory appeals in situations where “unresolved issues of fact” remain or the district court
       has not even “tentatively decided anything
       about the merits of the claim.”…

 at 786 (quoting Switzerland Cheese Ass’n, Inc. v. E. Horne’s
Market, Inc., 

 (1966)) (additional citations omitted).
   The defendants suggest that our decision in Abelesz v.
Magyar Nemzeti Bank, 

 (7th Cir. 2012), cabined
Khorrami and allowed appeals of orders postponing decisions
on qualified immunity in addition to those denying qualified
immunity. We do not read Abelesz that way.
    Abelesz involved a question of sovereign immunity: the
plaintiffs were suing Hungarian state entities and instrumentalities (Hungary’s central bank and national railway) for the
theft of property from Jewish families during the Holocaust.
When, at the pleading stage of the case, the defendants sought
dismissal of the complaints based on their immunity from suit
under the Foreign Sovereign Immunities Act, 28 U.S.C.
10                                                  No. 22-2583

§ 1604, the district court concluded that the plaintiffs had alleged enough to invoke an expropriation exception to FSIA
immunity, id. § 1605(a)(3), and on that basis denied the defendants’ motions to dismiss. See Holocaust Victims of Bank
Theft v. Magyar Nemzeti Bank, 

 (N.D.
Ill. 2011) (“Plaintiffs allege that Magyar took money and other
property held in bank accounts or kept in safe deposit boxes
at Magyar. [S]uch taking was in violation of international law.
… Finally, plaintiffs have sufficiently alleged that Magyar
owns or operates the property in question and that Magyar is
engaged in commercial activity in the United States within the
meaning of the FSIA.”) (citations omitted), vacated & remanded
by Abelesz, 

; Victims of the Hungarian Holocaust v.
Hungarian State Rys., 

 (N.D. Ill. 2011)
(“Plaintiffs have … alleged facts that, when accepted as true
at the motion to dismiss stage, suggest that Plaintiffs’ personal property, contractual rights, and interest in real property were taken by [Hungarian State Railways] and that the
takings violated international law. … Plaintiffs have [also] alleged facts showing that HSR conducts commercial activity in
this case sufficient to satisfy the nexus requirement for the
takings exception.”), vacated & remanded by Abelesz. To the extent that the defendants denied the relevant factual allegations, the court added that it was premature to resolve the veracity of the complaint’s factual allegations on a motion to dismiss, and that the defendants were free to reassert their immunity defenses on summary judgment. Magyar Nemzeti
Bank, 

; Hungarian State Rwys., 

.
   When the defendants appealed these rulings in Abelesz, we
determined that we had jurisdiction over the appeal precisely
because the district court had denied the motions to dismiss,
No.22-2583                                                      11

and we distinguished Khorrami on that basis, noting that in
Khorrami, the district court had postponed a decision on the
question of immunity. 

. Although the district
court’s decisions in Abelesz had also included language
indicating that it was “premature” to resolve the merits of the
sovereign immunity defense, which was “not ripe for
adjudication” at the pleading stage of the case, we were
satisfied that the district court—having otherwise found the
complaints’ allegations sufficient to invoke an exception to
sovereign immunity—had, in fact, denied the motions to
dismiss on the merits, resulting in a ruling that was subject to
interlocutory review. 

 (More on the Abelesz district court’s
“premature” and “not ripe for adjudication” language in a
moment.)
     The same cannot be said here. To be sure, the district court
in this case did say at the conclusion of its order that the defendants’ motion to dismiss was “denied.” R. 13 at 10. But the
court’s language in the preceding sentence 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. By way of explanation, the court cited
Doe v. Purdue Univ., 

 (7th Cir. 2019), and Jacobs v. City of Chicago, 

, 765 n.3 (7th Cir. 2000), for
the common-sense point that qualified immunity is factdriven, and yet as a matter of federal pleading rules the plaintiff is not required to set out in his complaint all of the facts
that might bear on qualified immunity. The court’s reference
here to “a more fully developed record” in its concluding sentence thus leaves no doubt that it 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
12                                                 No. 22-2583

immunity. Beathard, 620 F. Supp. 3d at 784; see Hanson, 967
F.3d at 591–92. 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. In short, the court’s
order “d[id] not settle or even tentatively decide anything”
about the merits of the defendants’ qualified-immunity arguments. Switzerland Cheese Ass’n, 

. It reserved
those arguments for a later date.
    By contrast, the district court in Abelesz had reached the
merits of the immunity defense, reasoning that the plaintiffs
had alleged enough in their complaints to support FSIA’s expropriation exception to sovereign immunity. When the
Abelesz court added that it was “premature” to resolve the
“merits” of the sovereign immunity defense, it was merely
recognizing that allegations and facts are not the same thing,
and that the evidence subsequently adduced in discovery
might show that one or more of the complaint’s material allegations as to the FSIA’s expropriation exception were not
true, and the court’s qualified-immunity inquiry might, as a
result, produce a different conclusion. Magyar Nemzeti Bank,

; Hungarian State Rwys., 

; see Hanson, 967 F.3d at 591–92. This is why an immunity defense can be raised at multiple stages of the case: At the
pleading stage, the assessment of qualified immunity turns
solely on the allegations of the complaint, whereas at the summary judgment stage, the assessment turns on the undisputed
facts. Behrens, 

. Thus, if a court has rejected
qualified immunity at the former stage of the case, the defense
can be raised again at the latter stage. 

 at 307–08.
No.22-2583                                                     13

   Here, there can be no doubt that the district court was
postponing consideration of the qualified immunity defense,
bringing this case within the rubric of Khorrami rather than
Abelesz. Indeed, the balance of the court’s order confirms the
court’s conclusion that factual development was required before the court could reach the merits of the immunity defense.
    As we have noted, the defendants, apart from invoking
qualified immunity, had also moved to dismiss Beathard’s
First Amendment claim on the ground that his allegations
failed to state a claim on which relief might be granted. The
district court rejected this argument in part: It found that
Beathard engaged in protected personal speech when he affixed the “All Lives Matter” poster to his office door. 620
F. Supp. 3d at 782. But more is required to establish that one’s
state employer violated its employee’s First Amendment
rights by taking disciplinary action against him based on his
personal speech. His speech must have addressed a matter of
public concern, Connick v. Myers, 

, 145–47 (1983),
and under Pickering, 

, a plaintiff must also show
that his interest in speaking on such a matter outweighed his
public employer’s interest in the efficiency of the public services it performs through its employees. As to this aspect of
Beathard’s First Amendment claim, the court said that without discovery and development of the facts, it could only conduct the Pickering balance by engaging in speculation. 620
F. Supp. 3d at 783.
    The district court’s conclusion as to Pickering was not at all
unreasonable: the Pickering balance is inherently factdependent. See Lalowski v. City of Des Plaines, 

(7th Cir. 2015); McGreal v. Ostrov, 

 (7th Cir.
2004); Gustafson, 

 (all noting the fact-specific
14                                                    No. 22-2583

nature of the Pickering balancing test). As such, it is precisely
the sort of matter that typically cannot be resolved on the
pleadings. See McGreal, 

 (“Pickering balancing
is not an exercise in judicial speculation.”) (quoting Gustufson,

).
    The district court’s rationale as to Pickering further illustrates why the court thought it necessary to postpone a decision on qualified immunity. Although we have acknowledged that qualified immunity can be resolved on pleadings
in certain situations, Sabo v. Erickson, No. 21-3332, --- F.4th ---,

, at *3 (7th Cir. Jan. 31, 2025) (en banc) (collecting cases), particularly when the relevant issues are legal or
“abstract,” Hanson, 

, we have recognized that it
will often be premature to do so at the motion to dismiss
stage. E.g., Roldan v. Stroud, 

 (7th Cir. 2022);
Hanson, 967 F.3d at 589–90. Especially where the merits of a
plaintiff’s claim turn on the application of a fact-intensive balancing test, it will be difficult to assess prior to discovery
whether the results of that test would have been obvious to
the defendant without knowing “what is being balanced
against what.” Evans-Marshall v. Bd. of Educ., 

, 235
(6th Cir. 2005) (Sutton, J. concurring).
    The defendants emphasize that Beathard’s complaint itself acknowledges that the message posted on his office door
caused dissention among the ranks of the school’s football
players. Pickering recognizes that a public employer may discipline an employee for personal speech that interferes with
its mission. 

. As the defendants see it, the disruption that Beathard’s speech fomented among team members gave Lyons and Spack all the cause they needed to remove Beathard from his position—or enough cause, at least,
No.22-2583                                                     15

to be shielded by qualified immunity for the discharge. In fact,
however, the complaint alleges only that “some” football
players “apparently” were “upset” by Beathard’s message
and threatened to continue boycotting practice sessions, and
that Coach Spack later advised Beathard he was “in trouble”
because of that message. R. 13 at 9 ¶¶ 33–34. Beathard himself
disputes the notion that his speech resulted in substantial disruption among the team’s players. R. 13 at 12 ¶ 47. 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. Second- and third-hand accounts
about the effects of a plaintiff’s speech are a shaky foundation
for a Pickering inquiry. For that matter, the complaint alleges
that Spack told Beathard he was being removed for an altogether different reason (because Spack was unhappy with the
direction of the offense). R. 13 at 9 ¶ 35. 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.
    We take the defendants’ point that qualified immunity is
meant to spare a defendant the burden of litigation, not
merely an adverse monetary judgment at the conclusion of a
suit. See Pearson, 

, 237 (citing Mitchell, 

). To that end, an invocation of qualified immunity
should be resolved as soon as the record allows an assessment
of the defense. Sabo, 

, at *3. But at what stage
of the case it is realistically possible to evaluate qualified immunity depends on the nature of the claim and circumstances
16                                                  No. 22-2583

of the individual case. In some cases, the fact-intensive nature
of the claim means that resolution of a qualified immunity defense must await factual development. E.g., Roldan, 

. The district court reasonably understood this to be such
a case.
    This is not to say that deferring the question of qualified
immunity leaves the defendants with no protection from the
burdens of litigation. The district court has broad discretion
to manage discovery (including the imposition of appropriate
limits) and to prioritize development of the record as to the
issues relevant to the defense of qualified immunity. See Jacobs
v. City of Chicago, 

, 775–76 (7th Cir. 2000) (Easterbrook, J., concurring). The district court and the parties may
also prioritize a motion for summary judgment focused on
qualified immunity without prejudice to a later round of summary judgment focused on other issues. Roldan, 

.
                              III.
   Because the district court postponed a decision on the defendant’s invocation of qualified immunity rather than denying their motion to dismiss on that basis, we lack jurisdiction
over this appeal.
                                                   DISMISSED.