Mark Fritz v. TONY EVERS, Wisconsin State Superintendent of Public In- struction

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2955
MARK FRITZ,
Plaintiff-Appellant,
v.
TONY EVERS, Wisconsin State Superintendent of Public In-
struction,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 15-cv-581-wmc — William M. Conley, Judge.
____________________
ARGUED SEPTEMBER 5, 2018 — DECIDED OCTOBER 23, 2018
____________________
Before EASTERBROOK, HAMILTON, and SCUDDER, Circuit
Judges.
EASTERBROOK, Circuit Judge. 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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2 No. 17-2955
Frid in March 2012. In August 2013 the Department of Public
Instruction told Frid that the report about him was not sup-
ported 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 depriva-
tion of any liberty or property interest, taking the claim out-
side the scope of the Due Process Clause. (Frid has aban-
doned 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 em-

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No. 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 pro-
vides 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 lib-
erty or property.
There’s a further problem. Frid contends that the Consti-
tution 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 oppor-
tunity for a hearing. People are arrested, and criminal inves-
tigations begun, before adversarial hearings. If the arrest oc-
curs in a public place, even an ex parte warrant is unneces-
sary. See United States v. Watson, 423 U.S. 411 (1976). A hear-
ing occurs promptly after an arrest only if the suspect re-
mains in custody. See County of Riverside v. McLaughlin, 500
U.S. 44, 51–52 (1991). Civil proceedings also begin long be-
fore 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 ongo-
ing.
Probable cause is required to support custody, see Ma-
nuel 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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4 No. 17-2955
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 con-
cluded. 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 con-
ducted 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

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No. 17‐2955 5
HAMILTON , Circuit Judge, concurring. I agree with my col‐
leagues 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 no‐
tice 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 profes‐
sional 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 un‐
able 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 enti‐
tled). See Wis. Admin. Code § PI 34.102. The department, ra‐
ther 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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6 No. 17‐2955
delay poses serious due process questions even if Fritz him‐
self 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 pub‐
lic designation of child‐care workers as subject to “indicated”
findings of child abuse).
Wisconsin’s public designation of a teacher as “under in‐
vestigation” 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 sub‐
stance.” The state’s assertion loses sight of the statutory de‐
tails 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 inves‐
tigation” 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 fourth‐
degree sexual assault under Wis. Stat. § 940.225(3m);

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No. 17‐2955 7
(3) the teacher is dismissed (or his contract is not re‐
newed) “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 rea‐
sonable 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 resigna‐
tion related to his having engaged in “immoral conduct.” Un‐
der 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 vio‐
lating “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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8 No. 17‐2955
When a teacher comes under reasonable suspicion of
abusing students, the state’s interests are obvious and power‐
ful. Everyone has an interest in resolving the situation accu‐
rately, 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 [al‐
low] 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 “effec‐
tively” bars individuals “from future employment” in chosen
field “squarely implicate[s] a protected liberty interest” re‐
quiring due process); see also Doyle v. Camelot Care Centers,
305 F.3d 603, 617 (7th Cir. 2002) (“the ‘alteration of a legal sta‐
tus,’ such as a governmental right previously held, ‘which,

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No. 17‐2955 9
combined with the injury resulting from the defamation, jus‐
tif[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 al‐
ternative to license suspension, but with similar practical con‐
sequences. 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 “un‐
der 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 Prac‐
tices for Misconduct Referrals under § 115:31, 1–2 (Jan. 30, 2012),
https://dpi.wi.gov/sites/default/files/imce/tepdl/Licens‐
ing/act84bestpractices2011.pdf (administrators should use
department’s “License Look Up” feature to determine
“whether the applicant is currently the subject of a DPI inves‐
tigation”). 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 depart‐
ment further encourages administrators to cooperate in inves‐
tigations 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 em‐
ployment. 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 ex‐
perience 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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10 No. 17‐2955
injunctive relief as in DuPuy v. Samuels. But complying with
state law would go a long way toward avoiding such prob‐
lems.

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