“It’s Her Fault”: An Illinois School Board Fires a Guidance Counselor For Self-Publishing a Sexually Explicit Advice Book on Adult Relations
by Richard Fossey, Suzanne Eckes & Todd A. DeMitchell - September 18, 2014
An Illinois school board fired a tenured guidance counselor because he self-published a sexually explicit advice book on adult relationships. The Seventh Circuit Court of Appeals upheld the school board's decision on the grounds that the board reasonably believed that the book could undermine the integrity of the school counseling program.
Bryan Craig, a tenured high-school guidance counselor, self-published a short advice book on adult relationships entitled Its Her Fault. As described by the Seventh Circuit Court of Appeals, the book was an adult book in every sense of the word (Craig v. Rich Township School District 227, 2013, p. 1113). The book repeatedly discussed sexually provocative themes and used sexually explicit language.
Craigs employer, the school board of Rich Township High School District 227, learned about Craigs book and fired him. Craig sued the school district, the school board and several school board members, claiming that the school board retaliated against him for engaging in constitutionally protected speech. A trial court dismissed the case on the grounds that Craigs book did not address a matter of public concern and was not entitled to constitutional protection.
On appeal, the Seventh Circuit affirmed Craigs termination, although the reasoning differed from the trial courts analysis. The case is an interesting one for all public school educators because it illustrates the limits of a school employees free-speech rights, even when speaking as a private person and not as a school district employee.
ITS HER FAULT: THE FACTS OF THE CASE
Bryan Craig was a tenured guidance counselor at Rich Central High School, located in a suburb of Chicago. He also served as Rich Centrals womens basketball coach. In 2012, Craig self-published a short book entitled Its Her Fault, which consisted of a collection of his relationship advice for women.
Some of Craigs advice was fairly run-of-the-mill. For example, he counseled women to be discrete, to be good listeners and to [p]ay very close attention to content when having serious conversations with your man (p. 1114).
But some of Craigs advice was far from mundane. Craig described what the Seventh Circuit delicately descried as other portions of a womans anatomy (p. 1114). He urged women to engage in sexual experimentation before marriage and to submit to their male partners sexual demands in order to keep them from being unfaithful. And in one part of his book, Craig delve[d] into a comparative analysis of the female genitalia of various races which goes into an excruciating degree of graphic detail (p. 1114).
Throughout the book, Craig made references to his school employment, thus linking his employment to his book. For example, he cited his experience with women when coaching girls basketball and when counseling female students. He thanked the students he counseled in the acknowledgement section of his book, and another school counselor wrote the books forward.
Eventually, the school board found out about Craigs book, and the school districts superintendent began dismissal proceedings against him. Written charges were drawn up, which stated:
(1) that publication of Craigs book ha[d] caused disruption, concern, distrust and confusion among members of the School District community; (2) Craig violated the School Boards Policy prohibit[ing] conduct that creates an intimidating, hostile, or offensive education environment; and (3) Craig failed to present [himself as] a positive role model and failed to properly comport himself in accordance with his professional obligations as a public school teacher. (p. 1115)
In September 2012, the Rich Township school board adopted the charges against Craig and passed a resolution finding cause to discharge him. Craig then filed suit in federal court, arguing that the school board had fired him in retaliation for engaging in constitutionally protected speech.
A federal trial court dismissed Craigs suit for failure to state a claim. In the trial courts opinion, Its Her Fault did not address a matter of public concern, being little more than a lurid account of [Craigs] own sexual preferences and exploits (p. 1115). Thus, the court ruled, Craigs book was not entitled to First Amendment protection.
SEVENTH CIRCUITS DECISION: SCHOOL BOARD REASONABLY ANTICIPATED THAT CRAIGS BOOK WOULD DISRUPT THE SCHOOL ENVIRONMENT
On appeal, a three-judge panel of the Seventh Circuit Court of Appeals affirmed the trial courts ruling, although it disagreed with the trial courts analysis. In the Seventh Circuits view, Craigs book did address a matter of public concern, even though the book was of a sexually graphic nature. After all, the appellate court pointed out, Craigs book, though provocative, does address the structure of adult relations, an issue with which some segment of the public would be interested (p. 1117).
Nevertheless, the Seventh Circuit concluded that the Rich Township school board had justifiable grounds for firing Craig, even though his book was entitled to constitutional protection. Citing precedents from the Seventh Circuit and guidance from the U.S. Supreme Court, the Seventh Circuit ruled that Craigs constitutionally protected interest in publishing Its Her Fault, must be weighed against his employers interest in promoting efficient and effective public service (p. 1118). In the Seventh Circuits view, the Rich Township school board reasonably anticipated that Craigs book would create a disruption in the school environment, which justified the boards termination decision.
First of all, the court noted, Craig was a guidance counselor, a position that conferred an inordinate amount of trust and authority upon him. In this position, Craig was obliged to maintain a safe space for his students in order to ensure they remain willing to come to him for advice (pp. 119-1120). If he failed to maintain a comfortable environment for his students, the court reasoned, they would not come to him for guidance and he would not be able to do his job.
In the courts view, the school board reasonably predicted that Craigs book would create a negative impact on the high schools counseling program. For example, the court observed:
[W]e can easily see how female students may feel uncomfortable seeking advice from Craig given his professed inability to refrain from sexualizing females. . . . Knowing Craigs tendency to objectify women, [the school board] could reasonably anticipate that some female students would feel uncomfortable reaching out to Craig for advice. Indeed, some students may forego receiving the schools counseling services entirely rather than take the risk that Craig would not view them as a person but instead as an object. (p. 1120)
In summary, the court ruled, the school districts interests in protecting the integrity of counseling services at Rich Central dwarfed Craigs interest in publishing Its Her Fault. Craigs speech interest was entitled to only minimal weight when compared to the school boards interest in preventing a likely disruption of their guidance counseling services (p. 1121). Thus, the school boards decision to terminate Craigs employment did not offend the First Amendment.
Although the Seventh Circuit upheld the discharge of a guidance counselor for writing and publishing a book as a private person, we do not view the Craig decision as a threat to the free speech rights of most public school employees. The courts decision can be explained in great part by the fact that Craig held a particularly sensitive job at his high schoolthe job of guidance counselor. Indeed, the court emphasized that the school boards interest in the integrity of its counseling program formed an important part of its analysis. (p. 1121). The court clearly saw a connection between Craigs responsibility to provide guidance counseling to female students and his views on women as expressed in his book. The court had no difficulty upholding the school boards decision to fire Craig based on its conclusion that the views expressed in Its Her Fault could degrade Craigs efficiency as a counselor, particularly given the inevitability of Craigs book becoming common knowledge at Rich Central (p. 1120).
Craigs book addressed a matter of public concern, which entitled it to some constitutional protection under the First Amendment. But weighed against a school boards interest in preserving a safe counseling environment (p. 1121), those interests were entitled to very little consideration.