SCHOOLS ALLOWED TO PREDICT FUTURE HARMFUL IMPACT OF EMPLOYEE’S FIRST AMENDMENT SPEECH

November 15, 2013

By Paulette A. Petretti

On December 3, 2013, the U.S. Court of Appeals for the Seventh Circuit entered an opinion in the matter of Bryan Craig v. Rich Township High School District 227, et al., in which the Court addressed the issue of whether a school district could terminate a guidance counselor who self-published a book he wrote on his personal time containing adult relationship advice entitled “It’s Her Fault.” The Court reviewed the school’s charges for termination which included, among other considerations, that the publication had caused disruption, concern, distrust and confusion among members of the school district community, that the book violated the district’s sexual harassment policy because it created a hostile and offensive educational environment, and that the guidance counselor failed to present himself as a positive role model.  After analysis of Craig’s provocative themes and sexually explicit terminology, spanning discussions of penis sizes, oral sex, and differences in women’s vaginas, the Court determined that the school district’s interest in protecting the integrity of counseling services at the high school “dwarfed” the guidance counselor’s interest in publishing “It’s Her Fault.”

While the Court was willing to acknowledge that Craig’s book did address a matter of public concern because it, in part, addressed the structure of adult relationships, the Court found the weight of Craig’s First Amendment message to be extremely limited.  In light of the limited weight of Craig’s speech interest, the Court concluded that the school district’s interest in preventing a likely disruption of their guidance counseling service outweighed Craig’s limited speech interest and was sufficient to justify Craig’s discharge.  Craig’s termination did not offend the First Amendment.

In arriving at its decision, the Court examined the unique relationship between a guidance counselor and students and found that the school district reasonably gauged how students’ response would impact conditions at the school.  For example, the Court under stood how easily female students could feel uncomfortable seeking advice from Craig given his professed inability to refrain from sexualizing females.  In his book, Craig confesses a “weakness for cleavage” and another portion of a woman’s anatomy and admits that these body parts served as distractions in his encounters with women.  Knowing Craig’s tendency to objectify women, the school district could reasonably anticipate that some female students would feel uncomfortable reaching out to Craig for advice.  In deed, there was a reasonable danger that some students would forego receiving the school’s counseling services entirely rather than take the risk that Craig would not view them as a person but instead as an object. Accordingly, the Court deemed the school district’s concerns as substantial grounds for terminating Craig’s employment.

Here, the school district reasonably predicted that “It’s Her Fault” would interfere with the learning environment. The Court respected the school district’s concern that the book would be available to students.  Parents and students had aired complaints to the administration and the book was available for purchase, without age restrictions, over the internet.  Craig dedicated the boo k to his students who “consistently reach out” to him about relationships and encouraged those students to “keep listening and learning.”  The school’s assessment of how Craig’s students, particularly his female students, would respond upon reading or hearing about the “hypersexualized” content of his book loomed large in the Court’s analysis.

The opinion stresses that a public school teacher holds a position that by its very nature requires a degree of public trust not found in many other positions of public employment.  Particularly as a guidance counselor, Craig was required to maintain a safe place for his students in order to ensure they remain willing to come to him for advice.  With the publication of his book, Craig betrayed the trust required of his job.  The school district’s interest in delivering appropriate educational services outweighed Craig’s interests in providing advice about “adult” relationships. Therefore, the Court upheld the dismissal of his complaint, which invoked protection under the First Amendment.

Scariano, Himes and Petrarca partners Paulette A. Petretti and Darcee C. Williams defended the school district defendants against Craig’s First Amendment claims in federal district court and on appeal. A copy of the opinion, which is rather colorful in i ts review of the book and the school district’s decision, is available  here.