Mark Fritz v. Tony Evers

Wisconsin requires public

officials to report certain events or suspicions about teachers

to the Superintendent of Public Instruction. Wis. Stat.

§115.31(3)(a). When a qualifying report is made, the state

lists the teacher on a public website as “under investigation”.

Wis. Stat. §115.31(6)(b). Such a report was made about Mark

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Frid in March 2012. In August 2013 the Department of Public

Instruction told Frid that the report about him was not supported

by probable cause to believe that he had engaged in

misconduct. His name was removed from the site. In this

suit under 42 U.S.C. §1983 Frid alleges that schools would

not hire him while he was under investigation. He contends

that the state had to afford him a hearing before puging his

name on the list of persons under investigation.

This claim was doomed at the outset by the fact that Frid

sued only the Superintendent, in his official capacity. Section

1983 does not authorize awards of damages against states,

and a state official (in his official capacity) is the state. See

Will v. Michigan Department of State Police, 491 U.S. 58 (1989).

In principle, prospective relief could be available under the

approach of Ex parte Young, 209 U.S. 123 (1908), but Frid

does not contend that his name is likely to appear on the

“under investigation” list in the future.

Instead of inviting Frid to name a different defendant,

the district court dismissed the suit on the merits. 2017 U.S.

Dist. LEXIS 143840 (W.D. Wis. Sept. 6, 2017). (The opinion

says that the suit is dismissed without prejudice, but the

judgment is unconditional and therefore with prejudice. Fed.

R. Civ. P. 41(b). Thus appellate jurisdiction is secure.) The

judge ruled that his complaint does not allege the deprivation

of any liberty or property interest, taking the claim outside

the scope of the Due Process Clause. (Frid has abandoned

any other theory of recovery.)

Paul v. Davis, 424 U.S. 693 (1976), holds that defamation

by a public official does not violate the Due Process Clause.

Defamation is what this complaint alleges, so it fails under

Paul. Defamation plus some other injury, such as loss of emNo.

17-2955 3

ployment, may require a hearing. See Codd v. Velger, 429 U.S.

624 (1977). But the complaint does not assert that the listing

cost Frid his job. The state statute does not require a teacher

under investigation to be fired or otherwise disciplined. It

does not authorize adverse action of any kind; it just provides

public notice of an investigation. Counsel told us at

oral argument that Frid resigned voluntarily; that’s why he

was looking for a new position; yet as long as he had a right

to maintain his established position it is impossible to blame

unemployment on §115.31(6)(b). We therefore agree with the

district court that the complaint does not allege a loss of liberty

or property.

There’s a further problem. Frid contends that the Constitution

requires a hearing before public notice that a charge is

under investigation. Yet our legal tradition is notice first,

hearing later. Thus criminal charges are filed, whether by

indictment or information, before the accused has an opportunity

for a hearing. People are arrested, and criminal investigations

begun, before adversarial hearings. If the arrest occurs

in a public place, even an ex parte warrant is unnecessary.

See United States v. Watson, 423 U.S. 411 (1976). A hearing

occurs promptly after an arrest only if the suspect remains

in custody. See County of Riverside v. McLaughlin, 500

U.S. 44, 51–52 (1991). Civil proceedings also begin long before

a hearing. Both civil and criminal charges are public,

even though being under a cloud may make it hard for the

defendant to get a new job while the proceedings are ongoing.

Probable cause is required to support custody, see Manuel

v. Joliet, 137 S. Ct. 911 (2017), but not to support a public

charge of crime. “[T]here is no such thing as a constitutional

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right not to be prosecuted without probable cause.” Serino v.

Hensley, 735 F.3d 588, 593 (7th Cir. 2013). A criminal trial

may occur months if not years after charges become public,

and in the interim the accused does not have a constitutional

right to a hearing at which a judge will determine whether

the grand jury should have issued an indictment. See Kaley v.

United States, 571 U.S. 320 (2014).

Administrative investigations likewise precede hearings.

The Federal Trade Commission or Securities and Exchange

Commission may conduct a public investigation and defer a

hearing until after it issues a charge and discovery has concluded.

Judicial review is impossible until the agency makes

its final decision. See FTC v. Standard Oil Co., 449 U.S. 232

(1980). Wisconsin followed the traditional approach: it conducted

an investigation to see whether a formal proceeding

was warranted, and after concluding that it was not the state

closed the investigation and removed the public listing. It

would upset more than two centuries of practice to declare

that approach a violation of the Constitution.

AFFIRMED

No. 17‐2955 5

HAMILTON, Circuit Judge, concurring. I agree with my colleagues

that the district court’s judgment dismissing this case

must be affirmed, and I join the court’s opinion. Plaintiff Fritz

is not entitled to relief under federal law. He has not sued any

defendant who could possibly be held liable for damages, and

the time for any injunctive relief in his case passed when

Fritz’s good name was cleared in 2013.

On the merits, I also agree that “our legal tradition is notice

first, hearing later,” ante at 3, but that is not the whole

story here. There is another way to understand what happens

with Wisconsin’s system for publicizing an investigation of a

licensed teacher for “immoral conduct.” This alternate view

can pose due process problems. Because a state‐issued professional

license is at stake, the familiar rule of Paul v. Davis, 424

U.S. 693 (1976), concerning defamation by state officials, does

not necessarily control this situation.

In March 2012, Fritz resigned from his teaching job. He

learned later that month, when he was turned down for a new

job, that the state Department of Public Instruction had listed

him as “under investigation.” For the next 17 months, he was

in legal limbo: he was practically un‐hirable, yet he was unable

to discover why he was under investigation, and had no

idea when it might end. In July 2013, the department told him

that it would not complete its investigation until at least 2014,

two years after the report. Fritz hired a lawyer, who quickly

requested a hearing (to which Fritz was not statutorily entitled).

See Wis. Admin. Code § PI 34.102. The department, rather

than convene a hearing, made a formal finding in less

than three weeks that there was no probable cause to initiate

license revocation proceedings, and it removed Fritz’s “under

investigation” designation. The combination of stigma and

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delay poses serious due process questions even if Fritz himself

is not entitled to relief under federal law. See DuPuy v.

Samuels, 397 F.3d 493, 509 (7th Cir. 2005) (affirming injunction

ordering 35‐day deadline for resolving appeals of state’s public

designation of child‐care workers as subject to “indicated”

findings of child abuse).

Wisconsin’s public designation of a teacher as “under investigation”

for suspected “immoral conduct” can inflict a

stigma that makes a teacher unemployable, as a matter of fact

if not law, until the investigation is resolved. If that’s correct,

the teacher may well be entitled at least to notice of the charge

being investigated and a name‐clearing hearing—and within

a reasonable time.

Wisconsin asserts here that it is “simply implausible that

anyone could reasonably infer anything of substance” from

the designation that a teacher is “under investigation.” The

state contends the category of “immoral conduct” is merely

an “administrative label” “devoid of any stigmatizing substance.”

The state’s assertion loses sight of the statutory details

and of real life.

To explain, a school administrator must report a licensed

teacher to Wisconsin’s Department of Public Instruction, and

the department must designate that teacher as “under investigation”

on its public website, under four circumstances:

(1) the teacher is charged with one of many serious

crimes against children (e.g., sexual assault or child

trafficking) under Wis. Stat. Ch. 948;

(2) the teacher is convicted of such a crime or of fourthdegree

sexual assault under Wis. Stat. § 940.225(3m);

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(3) the teacher is dismissed (or his contract is not renewed)

“based in whole or in part on evidence that the

person engaged in immoral conduct;” or

(4) the teacher resigns and the administrator has “a reasonable

suspicion that the resignation relates to the

person having engaged in immoral conduct.”

See Wis. Stat. § 115.31(3)(a).

Plaintiff Fritz was not charged with or convicted of any

such crimes. He resigned from his last teaching job. The only

statutory basis for reporting and investigating him was his

former employer’s “reasonable suspicion” that his resignation

related to his having engaged in “immoral conduct.” Under

the statute, “immoral conduct” includes a teacher’s use of

school computers for pornography, assisting child predators

with obtaining school positions, or otherwise “endanger[ing]

the health, safety, welfare, or education of any pupil” by violating

“commonly accepted moral or ethical standards.”

§ 115.31(1)(c)1.

The broad definition is nearly as broad as the allegations

that Socrates was corrupting the youth of Athens. But given

the statutory emphasis on possible sexual abuse of school

children, the stigma of an investigation for someone in Fritz’s

shoes should be apparent. To use an example from the state’s

brief, what administrator in her right mind, in deciding to hire

a new teacher, would cross her fingers and hope that a teacher

under investigation might have only given a cigarette to a

high‐school student when it is possible he engaged in sexual

activity with a child?

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When a teacher comes under reasonable suspicion of

abusing students, the state’s interests are obvious and powerful.

Everyone has an interest in resolving the situation accurately,

fairly, and quickly. But that leads us to two problems

under state law that surfaced in Fritz’s case. State law requires

that a report be made promptly, within just 15 days after an

administrator learns of the basis for the report. Wis. Stat.

§ 115.31(5)(a). Once a teacher has been reported, however, the

statutes impose no time limit on the department to determine

whether probable cause supports the report and whether to

initiate license revocation proceedings. § 115.31(6)(b). Also,

when the department begins an investigation, it is supposed

to “Notify the licensee that an investigation is proceeding, the

specific allegations or complaint against the licensee, and [allow]

the licensee [to] respond to the investigator regarding the

complaint or allegation.” Wis. Admin. Code § PI 34.100(1)(b).

Fritz alleges here that he did not receive the required notice.

As a result, Fritz was in limbo indefinitely and did not know

why.

Wisconsin has the power to suspend a teacher’s license, of

course. That formal step would require due process, at least

in the minimal form of notice and a timely and meaningful

opportunity to be heard. See DuPuy v. Samuels, 397 F.3d at

503, 509 (affirming injunction requiring prompt hearings and

decisions in appeals by child‐care workers and foster parents

listed publicly as accused of abusing children; disclosure by

licensing agency of stigmatizing information that “effectively”

bars individuals “from future employment” in chosen

field “squarely implicate[s] a protected liberty interest” requiring

due process); see also Doyle v. Camelot Care Centers,

305 F.3d 603, 617 (7th Cir. 2002) (“the ‘alteration of a legal status,’

such as a governmental right previously held, ‘which,

No. 17‐2955 9

combined with the injury resulting from the defamation, justif[

ies] the invocation of procedural safeguards’”), quoting

Paul, 424 U.S. at 708–09. Publicly listing accused teachers as

“under investigation” appears to be an easier and cheaper alternative

to license suspension, but with similar practical consequences.

It effectively suspends some teachers’ careers, but

without a prompt and fair opportunity to be heard and to

clear their names. The reasoning of DuPuy may well apply to

this system.

It is disingenuous for the state to contend here that an “under

investigation” designation is not meant to affect a

teacher’s status. The department tells school administrators to

use the designation when making hiring decisions. Best Practices

for Misconduct Referrals under § 115:31, 1–2 (Jan. 30, 2012),

https://dpi.wi.gov/sites/default/files/imce/tepdl/Licensing/

act84bestpractices2011.pdf (administrators should use

department’s “License Look Up” feature to determine

“whether the applicant is currently the subject of a DPI investigation”).

The department assures administrators that its

website “will indicate in red type at the top of the page if a

person’s license [is] under investigation.” Id. at 2. The department

further encourages administrators to cooperate in investigations

so as not to “allow[] potentially dangerous persons

to remain in the classroom.” Id. at 3.

Wisconsin undoubtedly has the power and duty to license

teachers and so to act as the gatekeeper to state education employment.

With that power comes the responsibility to be fair

to teachers, too, which includes complying with state law and

resolving these cases promptly. If another teacher has an experience

under this system similar to Fritz’s, it might add up

to a federal due process violation, calling at least for timely

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injunctive relief as in DuPuy v. Samuels. But complying with

state law would go a long way toward avoiding such problems.

Affirmed