Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—N.D. Ill.: School employee, fired after complaining about drag show, advances free speech claim, (Apr 3, 2025)

By Todd Harrison, J.D.

As the chief engineer at the school, there was nothing to suggest that her duties in that role included advising or opining on the substance of school programming.

A former chief engineer at a Chicago public school advanced her claim for First Amendment free speech retaliation after she was fired almost immediately for complaining about a poster in a hallway advertising a drag show scheduled to be shown to middle- and high-school students. Rejecting the defendants’ motion to dismiss, a federal district court in Illinois found that the employee was speaking as a private citizen, there was nothing to suggest that the speech affected the school day specifically or the school operation’s generally, and that at this stage, the school officials were not entitled to qualified immunity (Lopez v. Fasana, No. 1:23-CV-15819 (N.D. Ill. Mar. 31, 2025)).

The employee worked at a magnet school as chief engineer from October 2021 through April 2023. The school teaches students from Grade 7 through 12. The employee was not a direct employee of the Chicago Public Schools system, but rather was employed by Eco-Alpha, a subcontractor of a real estate services company.

Poster. During the early morning of April 28, 2023, before students arrived at school, the employee saw a poster advertising a drag show for students posted in a hallway. She said to a colleague, “I cannot get on board with that.” A vice principal overheard the comment and “expressed anger at her point of view.

Later that morning, the employee approached the vice principal and directly “expressed her concern over having a drag show at a school with children as young as 12.”

Swift action. That conversation allegedly triggered a series of reports up the command chain—all on Friday, April 28—eventually leading Eco-Alpha to terminate the employee on Monday, May 1.

Subsequently, the employee filed this lawsuit against the named defendants as well as the Chicago Board of Education. The defendants moved to dismiss, arguing that the individual defendants were entitled to qualified immunity, and that, even if they were not, the employee failed to allege that they retaliated against her for engaging in First Amendment protected speech. The Board of Education asserted that if the claims against the individual defendants failed, then the employee’s indemnification claim against it also failed. Ultimately, the court determined that the employee plausibly alleged a First Amendment retaliation claim that overcame qualified immunity.

Protected speech. According to the defendants, the firing was permissible because the employee was speaking as a public official and thus her speech was not protected. The court was not persuaded, finding that on the threshold requirement, the employee had plausibly alleged that she was speaking as a private citizen, not pursuant to her official duties.

There was nothing in the amended complaint to suggest that a school engineer’s duties include advising or opining on the substance of school programming, observed the court. Further, there was nothing hinting that the employee was speaking pursuant to a school policy or seeking to convey a school-created message. Instead, the employee expressed her own concern about the age-appropriateness of the show. In addition, the employee did not connect the concern with her duties, for example, by refusing to work on the set up for the show.

Public concern. As to whether the employee plausibly alleged that she spoke on a matter of public concern, the court determined that she had. “Indeed, the topic literally is about what should be shown in a public school,” said the court.

Pickering. The final question was whether the employee’s claim survived Pickering balancing. The court answered that question in the affirmative, finding the scales “tipped entirely” in the employee’s favor.

Her interest in expressing her opinion on what is appropriate for children to view in a school setting outweighed the needs of the school in carrying out the school system’s duties, said the court. Further, the complaint contained no allegations as to what disruption, if any, was caused by the employee’s speech. Her initial comment was made before students had arrived for the day and nothing suggested that anyone else was present during her subsequent conversation with the vice principal.

In addition, continued the court, there was nothing else about how the comment or the conversation otherwise affected the school day specifically or the school’s operations generally. Accordingly, the employee had at this stage, plausibly alleged a claim for First Amendment retaliation.

Qualified immunity. Turning to the question of qualified immunity, the court noted that the First Amendment has long forbidden retaliation against public employees for privately made speech on a matter of public concern. “More concretely, reasonable school officials would know that they violate the First Amendment when they fire a school engineer for expressing concern to a vice-principal about a drag show, and when the speech had zero impact on the school’s operations,” said the court.

Indemnification. With regard to the employee’s indemnification claim against the Board of Education, the court held that because the claims against the individual school officials survived, the indemnification claim survived as well.

The case is No. 1:23-CV-15819.

Judge: Chang, E.

Attorneys: Julie Herrera (Law Office of Julie O. Herrera) for April Lopez. Thomas Arthur Doyle, Chicago Board of Education for Matt Fasana.

Cases: IndividualRights CoverageLiability Discharge PublicEmployees Retaliation IllinoisNews