Craig v. Rich Twp. High Sch. Dist. 227

• Decision Date: 03 December 2013
• Docket Number: No. 13–1398.,13–1398.
• Citation: 736 F.3d 1110
• Parties: Bryan CRAIG, Plaintiff–Appellant, v. RICH TOWNSHIP HIGH SCHOOL DISTRICT 227, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

736 F.3d 1110

Bryan CRAIG, Plaintiff–Appellant,

v.RICH TOWNSHIP HIGH SCHOOL DISTRICT 227, et al., Defendants–Appellees.

No. 13–1398.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 10, 2013.

Decided Dec. 3, 2013.

Stephen L. Richards, Attorney, Chicago, IL, for Plaintiff–Appellant.

Paulette A. Petretti, Attorney, Scariano, Himes & Petrarca, Chicago, IL, for Defendants–Appellees.

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge.

In 2012, Bryan Craig self-published a short book of adult relationship advice entitled “It's Her Fault.” And when we say “adult,” we mean it in every sense of the word—in his book, Craig repeatedly discusses sexually provocative themes and uses sexually explicit terminology. Eventually, Craig's employer, a school district located in Chicago's south suburbs, learned of the publication of Craig's book and decided to terminate his employment because of it. Craig sued the school district, the school board, and several board members under 42 U.S.C. § 1983 alleging that they improperly retaliated against him for engaging in speech protected by the First Amendment. The district court dismissed the suit for failure to state a claim because, in its view, “It's Her Fault” did not address a matter of public concern and was not entitled to First Amendment protection.

While we respectfully disagree with the district court's assessment of the “public concern” issue, we ultimately uphold the dismissal of Craig's claim on an alternative basis. 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. However, we affirm the district court's dismissal because the allegations of Craig's complaint and the documents he relies upon to support his claim establish that the school district's interest in ensuring effective delivery of counseling services outweighed Craig's speech interest. 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 book's hypersexualized 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. We therefore affirm the district court's judgment.

I. BACKGROUND

Until recently, Bryan Craig was a tenured guidance counselor at Rich Central High School in Chicago's south suburbs. In addition to advising students, Craig served as the coach for Rich Central's women's varsity, junior varsity, and freshmen basketball teams.¹

In July 2012, while employed at Rich Central, Craig selfpublished a book entitled “It's Her Fault” which is a collection of Craig's relationship advice for women. As Craig tells it, while “counseling people of all ages and races [he] found himself saying the same things over and over to women during sessions.” Over the course of “provid[ing] counseling to thousands of students, parents, clients, and friends,” Craig discovered “a trail of popcorn leading back to it being her fault.” During these encounters with female advice-seekers, Craig determined “that women act based on emotion alone instead of emotion plus intellect” which leads to women being unable to obtain the type of relationship they want. By publishing the book, Craig hoped to give women “the road map to having the upper hand in a relationship with a man.”

Parts of Craig's book contain garden-variety relationship advice. For example, Craig highlights the need for discretion between partners in order to develop trust in a relationship. According to Craig, “our biggest downfall in relationships is sharing too much information with friends or associates.” Craig also writes of the importance of being a good listener and instructs women to “[p]ay very close attention to content when having serious conversations with your man.”

But not all of Craig's advice is this mundane. Much of “It's Her Fault” is dedicated to exploring provocative topics. For example, Craig devotes one chapter to informing women of the effectiveness of using sex appeal to obtain power in a relationship. Craig instructs by way of example:

Fellas, you ever notice how nice your girl is around payday, or how your d—k feels even better to them when they need something? Noooooo, most men don't notice, so, women, keep using that skill.

Such tactics are effective, in Craig's mind, because all “[m]en have sexual radar,” including Craig himself. Despite being “beyond the highest caliber of men,” Craig nevertheless confesses “a weakness for cleavage” and other portions of a woman's anatomy.

In another part of the book, Craig encourages his female readers to engage in “a certain level of promiscuity before marriage[:]”

Don't go hoeing around the world, but experience things. Women: discover different penis sizes, different races and ethnicities ... Discover what you like so you can prepare yourself before going into the wonderful world of marriage.

Craig uses sexually explicit terminology throughout “It's Her Fault.” One particularly graphic passage relates to Craig's argument that women must submit to their male partners in order to prevent them from being unfaithful:

Let[']s enter the wonderful world of submissiveness. Yeah I know ladies, you all hate that s—t. However, it must be in place in order for us to feel some type of power. Say more “yes” and a lot less “no.” He's your man, go ahead and let him turn you every which way ... [g]ive him oral sex without making the “ugh” face. So what if you're tired, ask him if he wants a meal.

In another part of the book, Craig delves into a comparative analysis of the female genitalia of various races which goes into an excruciating degree of graphic detail.

Craig references his employment at Rich Central throughout “It's Her Fault.” In the introduction, Craig establishes his qualifications as an advice-giver by relating the significant amount of time he has spent interacting with women. Aside from his relations with female family members, Craig cites his dealings with women when “coach[ing] girls basketball, work [ing] in an office where I am the only male counselor, and [being] responsible for roughly 425 high school students a year, about half of whom are females.” Craig also referenced his counseling of students in the acknowledgments section, thanking his “students and clients who consistently reach out to me during rough times in the world of relationships: Keep listening and learning.” Moreover, another Rich Central teacher, Kylie Gregor, identified herself as the author of the foreword to “It's Her Fault” and vouched for the value of Craig's advice.

Eventually, school board officials became aware of “It's Her Fault.” On September 14, 2012, the Superintendent of the Rich Township High School District 227, Donna Leak, sent Craig a letter informing him that the District had received “concerns from members of the School District community” regarding his book. Leak attached two documents, a list of Charges and a Bill of Particulars (collectively, the “Charges”), and notified Craig that she planned to recommend to the Board of Education of Rich Township High School District 227 (the “Board”) that he be discharged. Among other considerations, the Charges stated that: (1) the publication of Craig's book “ha[d] caused disruption, concern, distrust and confusion among members of the School District community;” (2) Craig violated the School Board's Policy “prohibit [ing] conduct that creates ‘an intimidating, hostile, or offensive educational 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 teacher.” On September 18, 2012, the Board adopted the Charges and issued a resolution finding cause for Craig's discharge.

Craig filed suit against the District, the Board, Leak, and various Board members (collectively, “Defendants”) under 42 U.S.C. § 1983. In his complaint, Craig alleges that his discharge was in retaliation for a protected exercise of his First Amendment rights. The district court dismissed Craig's complaint for failure to state a claim. In its ruling, the district court concluded that “It's Her Fault” was not entitled to First Amendment protection because it did not address a matter of public concern. Instead, the district court found that the book was “little more than a lurid account of plaintiff's own sexual preferences and exploits.” Craig now appeals.

II. ANALYSIS

On appeal, Craig argues that the district court incorrectly dismissed his First Amendment retaliation suit for failure to state a claim. “We review de novo a district court's dismissal under Rule 12(b)(6), construing factual allegations and any reasonable inferences in the light most favorable to the plaintiff.” Scott v. Chuhak & Tecson, P.C., 725 F.3d 772, 782 (7th Cir.2013).

A. “It's Her Fault” Addresses a Matter of Public Concern

Craig contends that the district court erred in concluding that “It's Her Fault” was not entitled to First Amendment protection because it did not involve a matter of public concern. An actionable “First Amendment retaliation claim by a public employee requires, at a minimum, that the speech being retaliated against be constitutionally protected, which means that the speech must involve a matter of ‘public concern.’ ” Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 984 (7th Cir.2013). Whether an employee's speech implicates a matter of public concern is a question of law that “must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147–48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

Despite its lofty...