Jane Austen You Ain’t! Guidance Counselor Loses First Amendment Suit

typewriter 

In Craig v. Rich Township High School District 227, et al. (12.3.13), a tenured high school guidance counselor and basketball coach pled himself out of court in his Section 1983 action alleging retaliation for self-publishing a book on relationship advice.  The coach claimed the defendant School District violated his First Amendment right to free expression by terminating him because of the book’s provocative themes.  The Seventh Circuit upheld the Illinois Northern District’s dismissal of the plaintiff’s lawsuit.

Plaintiff penned “It’s Her Fault”, an ostensible how-to book on adult relationships geared towards young women.  But much of the book consists of the author’s graphic depictions of his own sexual proclivities and exploits.

“It’s Her Fault” is complete with excruciatingly detailed anatomical references and sage (and paradoxical) advice like women should be submissive to their men yet also wield sex as a power source in their relationships.  The author also cautions women not to “go hoeing around” (we can’t have that now!!) but to experience some um, “variety” in their opposite sex encounters.

Plaintiff has his demons, though.  For while he modestly describes himself as “beyond the highest caliber of men!”, he still confesses a tendency to objectify women and a perpetual weakness for cleavage (cue ‘Debbie Downer’ ‘wah wah’ sound).

In his tract, the author also makes the sweeping generalization that women are too emotional and not logical enough for workable relationships.

I suppose it was no surprise then, that when the school board caught wind of plaintiff’s salacious literary offering, it fired him.  Plaintiff sued, claiming the school fired him in retaliation for exercising his First Amendment rights.

The Seventh Circuit upheld the Northern District’s dismissal of plaintiff’s claims and found that the school’s interest in serving its students in a non-sexualized atmosphere trumped the plaintiff’s right to free expression.

The Book Touches On a Matter of ‘Public Concern’

The court first found that Plaintiff’s book involved a matter of public concern under the First Amendment.  A First Amendment plaintiff must show his expression touches a matter of public concern.

“It’s Her Fault”‘s subject matter – adult relationship dynamics – does interest a large enough segment of society to merit First Amendment protection, the   Court said.

How so? Well, the public concern test doesn’t require the challenged speech to rise to the level of a profound life-and-death subject, such as the secrets of the universe or the nature of God (or something “orthonological” as the late David Foster Wallace might say).

All that’s required is that the topic appeal to some segment of society and be one that people might be interested in.

Here, the Court found that the book’s  adult relationships subject matter met the test and for proof pointed to the glut of relationship advice columns and self-help books that permeate our culture.

The School’s Interest in Restricting Speech Outweighs Plaintiff’s Interest in Publishing His Book

But the court ultimately found that the school was justified in firing plaintiff based on policy concerns.

A government defendant can restrict speech that involves a matter of public concern if the government can prove that the employee’s interest in commenting on the matter is “outweighed by the government’s interest in promoting effective and efficient public service.” 

An employer’s assessment of the possible havoc reeked by an employee’s challenged speech must be supported by tangible evidence and be more than mere speculation.

The Court found defendant’s concerns that plaintiff’s book would create an intimidating educational environment were well-founded.  As a coach and guidance counselor, the plaintiff held a position of trust and authority in relation to the students which made it likely the students would feel uncomfortable seeking advice from him.

The Court also noted that plaintiff’s blatant objectification of women in his book would likely make female students apprehensive about seeking  counseling services.

Because plaintiff’s book created such a sexually charged atmosphere, the court wrote,  it impeded the school’s ability to educate its students.  As a result, the defendants’ interest in avoiding a likely disruption in its services outweighed plaintiff’s free expression rights.

The Court also rejected plaintiff’s claim that the book’s content was protected because it had nothing to do with plaintiff’s employment and was done on plaintiff’s own time.  The Court noted the book made multiple references to plaintiff’s guidance counselor role, the book’s foreword was written by another teacher at the school and the acknowledgements section was replete with praise for specific students.

Since plaintiff directly linked himself  to the school,  his “my own time” argument failed.

Take-aways: Craig describes in detail the kind of expression that qualifies for public concern protection and the government interest that will override a public employee’s right to free expression.

Where a public school’s learning climate could be compromised due to a book’s inflammatory and hypersexual content, a person’s right to express himself can be curtailed.

 

 

 

Published by

PaulP

Litigation attorney at Fisher Kanaris, P.C. representing businesses and individuals in all types of commercial disputes.