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Friday, December 6, 2013

School's Termination of Counselor for Racy Book Upheld by Seventh Circuit

Most private employees that are "at-will" employees who engage in controversial activities outside of work are subject to rational or irrational discharge at the employer’s complete discretion.  Employees of public bodies that are not subject to union contacts are also considered at-will employees but they are entitled to a number of special protections arising out of the First Amendment. While First Amendment rights are very strong, courts are often willing to uphold the practical personnel decisions of governmental bodies even where the fired or disciplined employee’s arguments may have a "first blush" appeal. In the case of Craig v. Rich Township H.S.D. 227, et al., decided December 3, 2013, by the United States Court of Appeals for the Seventh Circuit, the blushes just go on and on. 

In that case, a high school counselor self-published a short book of adult relationship advice entitled:  It’s Her Fault. Craig brought a Section 1983 claim in federal court alleging that the School District, the School Board and several Board members improperly fired him in retaliation for his speech that he claimed was protected by the First Amendment. The district court judge dismissed the case, finding that the plaintiff's book did not address a matter of public concern and was not entitled to First Amendment protection. 

On appeal, the Seventh Circuit Court of Appeals disagreed with the district court's finding that Craig's book did not address a matter of public concern. Nevertheless, the court held that the School had the right to terminate Craig because the School's interest outweighed Craig's First Amendment rights.

The First Amendment protects the speech of employees of governmental bodies who make statements, even if controversial, that relate to matters of public interest rather than simply claiming First Amendment rights for publicly-raising their own private personnel concerns.  The unanimous three-judge panel wrote 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."  If that was the only consideration, then Craig could not be fired for expressing his views on an issue which had a broader context than matters learned and pertaining to his employment. 

The decision of the Seventh Circuit is beneficial to governmental bodies because it is practical in evaluating ways in which the outside activities of officers or employees of governments can dramatically harm their effectiveness to do their jobs.  The court writes: 
The School District reasonably predicted that "It’s Her Fault" would disrupt the learning environment at Craig’s school because some students, both female and male, who learned of the books hyper-sexualized content would be reluctant to seek out Craig’s advice.  Craig has effectively pled himself out of court by asserting allegations and incorporating documents sufficient to establish that the School District’s interest in restricting his speech outweighed his interest in publishing his book.  
In the opinion, the Court discusses many racy parts of Craig’s book.  Throughout the book, Craig references his employment at the School.  He served as a tenured guidance counselor and a coach for women’s varsity, junior varsity and freshman basketball teams.  Craig mentions his employment and the things that he learned in counseling students.  The Board of Education held a hearing on charges brought against Craig and ordered him to be discharged.  One of the charges was that the violated the School Board’s policy "prohibiting conduct that creates an intimidating hostile or offensive educational environment."  It was also charged that "he failed to present himself as a positive role model and failed to properly comport himself in accordance with his professional obligations as a public teacher. 

In its opinion, the Seventh Circuit continues its earlier view that public employees must be allowed to participate in public dialogue on matters on interest to the public.  The court writes:  "But the speech need not address a topic of great societal importance, or even pique the interest of a large segment of the public, in order to be safeguarded by the First Amendment."  Based on these arguments, governmental bodies need to be careful in making personal decisions that relate to an employee or officer’s legitimate expressions of First Amendment constitutional rights.  The court does, however, distinguish a case in which a police officer created a sexually-explicit video as one not relating to a matter of public concern.

Although this opinion does not mention a well known line of cases, there are many instances in which employees attempted to convert their own personal employment problems into matters characterized as problems with the general employment practices of the public employer.  Courts have generally had little problem in determining that such efforts were not an exercise of First Amendment rights, but simply efforts to go public with individual employment concerns and to avoid using established personnel procedures. 

Even though Craig’s speech was entitled to constitutional protections, his actions failed the second required test to proceed with his lawsuit.  It is true that Craig did not come to a school board meeting and express his views.  He did so in a private way and outside of the work environment.  In evaluating this part of the case, the Seventh Circuit writes that "an employer must provide a justification ‘far stronger than mere speculation, in order to restrict employees speech’ that ‘has nothing to do with their jobs.’"  In this case, however, Craig took deliberate steps to link his book with his work as a high school guidance counselor.  When the court balanced Craig’s interest with First Amendments speech with the School Board’s interest in having an effective guidance counselor in place, he could not meet the required burden.  After evaluating the public nature of the book and its content, the Seventh Circuit concluded that "indeed some students may forego receiving the School’s counseling services entirely rather than take the risk that Craig would not view them as person but instead as an object."  The School District "had an interest in terminating Craig’s employment in order to ensure effective delivery of counseling services to female students at Rich Central."  In part, the decision appears to be based on Craig’s position as a teacher and a counselor.  "Craig must maintain a safe place for his students in order to ensure they remain willing to come to him for advice."  The decision might have been different if Craig were the janitor or the School Board in-house attorney.  Maybe not the attorney.  

Finally the case is interesting in that the decisions of the district court and of the Seventh Circuit were based on a motion to dismiss.  This type of motion allows the courts only to consider the pleadings.  No discovery had taken place in this case, and there certainly was no trial with witnesses.  In this case the courts felt that neither discovery nor a trial would change the ultimate result.  The Seventh Circuit concludes its opinion by stating "While most First Amendment retaliation claims will not be amendable to resolution in the pleadings, Craig’s complaint and supporting documents place this case in the category of the exception rather than the rule."  The legal and practical issues discussed in this opinion should be read and understand by all parties attempting to dismiss a public employee for actions taken outside of working hours where  a claim of First Amendment protections will be made. 
Post Authored by Stewart Diamond, Ancel Glink 


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