Update: District Court Finds First Amendment Does Not Protect Former Guidance Counselor’s Sexually-Explicit Book

by Franczek Radelet P.C.

Originally published in March 2013, see update below.

The Northern District Court of Illinois found that Rich Township High School District 227 did not violate the free speech rights of former guidance counselor and girls’ basketball coach Bryan Craig when it dismissed him based on his self-published book “It’s Her Fault.” Craig wrote and published the book he described as a “self-help book” about relationships between men and women. But the Board of Education had concerns about the book and, after an investigation, dismissed Craig. Craig sued the district, arguing the dismissal violated his freedom of speech as well as due process rights.

To determine whether Craig had stated a First Amendment claim, the court first asked whether Craig’s speech was constitutionally protected. Where a government employee is speaking as a citizen, his speech is protected if it addresses a matter of public concern and his interest in commenting on matters of public concern outweighs the interest of the government employer in promoting efficient performance of its public services. That the speech is on a matter of public interest or public importance is not sufficient, neither is making the speech available to the public. Instead, the speech must address a subject of legitimate news interest, of general interest, value, and concern to the public at the time of publication.

In addition to discussions of the power balance between men and women in relationships, Craig’s book included sections describing his after-hours work at a strip club, urging women to be submissive, and encouraging men to cheat. He also cited his credentials as a high school girls’ basketball coach and guidance counselor to lend validity to his book. The court found that the book was “actually little more than a lurid account of plaintiff’s own sexual preferences and exploits,” and therefore not a matter of public concern. The court further found that “there is no question that the speech is detrimental to the mission and functions of the employer, including policies regarding discrimination based on gender or sex.” Because Craig’s speech was not constitutionally protected, his dismissal did not violate the First Amendment.

Craig also brought a due process claim, alleging the district deprived him of his liberty interest in pursuing his profession and maintaining his professional reputation. The court found that he could not prevail on the claim because he did not allege that the district publicly disclosed stigmatizing information that caused him to suffer a tangible loss of other employment opportunities.

As you know, public school students and teachers do not shed their first amendment rights at the school house gate, but neither are those rights absolute. School districts must use caution when considering discipline for student or teacher speech; courts will conduct a fact-intensive inquiry to determine how the speech and district response fit within the extensive case law precedent.

Update - August 2014

The Seventh Circuit affirmed the district court decision, but on different grounds. While the district court did not believe the book was entitled to constitutional protection because it was not on a matter of public concern, the Seventh Circuit disagreed. The court explained that “while full of objectionable content, Craig’s book deals with adult relationship dynamics, an issue with which a large segment of the public is concerned.” To be a matter of public concern, the speech need not be a matter of global significance or transcendent importance, but simply address a matter in which the public might be interested.

But concluding that the speech is a matter of public concern does not end the constitutional inquiry. In this case, the school district’s interest in ensuring effective delivery of counseling services outweighed Craig’s speech interest. The school district reasonably predicted that the book would disrupt the learning environment: some students who learned of the book’s hypersexualized content and Craig’s views about women and relationships would be reluctant to seek out his advice, leaving him unable to perform his job duties. The Seventh Circuit therefore affirmed the district court decision that his dismissal did not offend the First Amendment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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