01-2084 Gernetzke v. Kenosha Unified School District No. 1

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“The bearing of delegation on the principle of Monell turns out to be critical in this case. The final decisionmaking authority of the school district is lodged in the district’s school board, but the board has promulgated regulations that delegate the administration of the five high schools in the school district to the principal of each school. This delegation, the plaintiffs argue, makes the principal the final decisionmaker so far as the mural and the request to be allowed to distribute literature are concerned. That cannot be right. It would collapse direct and derivative liability. Every public employee, including the policeman on the beat and the teacher in the public school, exercises authority ultimately delegated to him or her by their public employer’s supreme governing organs. A police officer has authority to arrest, and that authority is ‘final’ in the practical sense that he doesn’t have to consult anyone before making an arrest; likewise a teacher does not have to consult anyone before flunking a student. That is a perfectly good use of the word ‘final’ in ordinary conversation but it does not fit the cases; for if a police department or a school district were liable for employees’ actions that it authorized but did not direct, we would be back in the world of respondeat superior. To avoid this the cases limit municipal liability under section 1983 to situations in which the official who commits the alleged violation of the plaintiff’s rights has authority that is final in the special sense that there is no higher authority…

School superintendents, principals, and teachers in Wisconsin do not have final authority in this sense, Wis. Stat. sec. 120.13(b)(1).

“It is true that by adopting an employee’s action as its own … a public employer becomes the author of the action for purposes of liability under section 1983…

The plaintiffs argue that ratification occurred here when after they brought this suit the school board refused to direct the principal of their school to alter his response to their demand. The argument if accepted would convert every public employee’s action that a plaintiff wished to challenge into the action of the employer.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Posner, J.