concurring.
The majority opinion in this case finds that Superintendent James Nelson is entitled to qualified immunity from suit for two independent reasons: first, because the complaint filed by Collette Ann Khuans fails to state a claim for a violation of her First Amendment interests under the line of cases that includes Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and second, because Superintendent Nelson did not violate any clearly established constitutional norms when he decided that she should be replaced. I do not agree with the first of these conclusions, for the reasons I explain briefly below. Nevertheless, I do agree that Nelson was entitled to qualified immunity from suit on the second ground, and I therefore concur in the majority’s opinion to that extent and in the result it reaches.
In order to find that Khuans failed to state a claim, we would need to conclude that there is no set of facts Khuans could present under which she could prevail, taking the allegations of her complaint in the light most favorable to her. I believe such a conclusion would be wrong on this record, given the nature of her allegations and the balancing test that Pickering and Connick require. The majority agrees that at least some of Khuans’ speech involved matters of public concern and thus that it is necessary to reach the question whether the government’s interest in an effective workplace outweighed her interest in free speech. See, e.g., Board of County Comm’rs v. Umbehr, — U.S. —, —, 116 S.Ct. 2342, 2347-48, 135 L.Ed.2d 843 (1996). Many of the points Khuans raised about Lynda Zielke, such as her alleged failure to give parents notification of educational planning meetings, her alleged predetermination of the proper classification for children, and her alleged practice of disregarding the individualized educational programs of children transferred to the Sahs school, implicate serious questions of public policy. Taking all the facts in the light most favorable to Khuans, and taking into account the fact that we are only at the pleadings stage, and thus do not have the benefit of a more complete record, I cannot say as a matter of law that the Pickering balance favors the government. The majori*1021ty, which relies on Wales v. Board of Educ., 120 F.3d 82 (7th Cir. 1997), ignores the fact that the Wales court had the benefit of the summary judgment record, and on that basis it was able to conclude that the public employee’s speech was not entitled to First Amendment protection. See also Gustafson v. Jones, 117 F.3d 1015, 1018 (7th Cir.1997) (discussing the difficulties with attempting to resolve the Pickering balancing test solely on the basis of the pleadings).
I am particularly disturbed by the majority’s decision to reach out and conduct this balancing process without the benefit of any additional factfinding or a summary judgment record like the one available to the Wales court because Khuans’ lawsuits against School District 110 and A.E.R.O. Special Education Cooperative are still pending. Our decision here may be seen as effectively deciding those cases as well, even though many of the considerations relevant to the claim against Superintendent Nelson will have little or no bearing when the district court turns to the claims against the School District and A.E.R.O.
Nelson’s appeal in this court concerns only the question of qualified immunity. I would resolve that claim by looking to the second part of the test for qualified immunity, namely, whether the constitutional standards applicable to his behavior were clearly established at the time of the alleged violation. Johnson v. Fankell, — U.S. —, —, 117 S.Ct. 1800, 1803, 138 L.Ed.2d 108 (1997). For the reasons set forth in the majority’s opinion at 1018-20, I agree that the standards were unclear. It would be asking quite a bit of school superintendents to expect them to resolve conflicts in the circuits and to anticipate Supreme Court rulings several years in advance of their appearance. Khuans’ status as an independent contractor or an employee was at least ambiguous, and there was no reason why Nelson should have realized that he could not cooperate with the A.E.R.O. staff to secure her departure from his school.
Because Nelson’s conduct, viewed objectively, violated no clearly established constitutional standard in effect at the time of his actions, I agree that the district court’s decision denying his motion to dismiss on qualified immunity grounds should be reversed.