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School Counselors and Freedom of Speech: Absolute or Adaptable?
Carolyn Stone, Ed.D.
Sunday March 01, 2015
by: Carolyn Stone, Ed.D.

Section: Inside Insight

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You are a school counselor in a conservative small town. Your colleague at the high school has just finished writing a book and finds himself at the center of a firestorm. The book recounts sexually explicit details about acts, considered demeaning by many, that women should perform to please men. Promiscuity before marriage and female submissiveness are encouraged and advice is given about how young women with low self-esteem are the easiest sexual conquests. Sexually explicit language is used throughout, and he gives his position as a school counselor as qualification that he knows women. He is fired. Has the school district violated his freedom of speech?

“Congress shall make no law . . . abridging the freedom of speech.” The Free Speech Clause of the First Amendment to the U.S. Constitution has been fiercely defended in the Supreme Court in cases of hate speech, flag burning, racist rants, parodies maligning people and anti-American hate speeches at military funerals. The Supreme Court protected: racist hate speech when it was “unlikely to incite violence” (Brandenburg vs. Ohio, 1969), a parody of real people engaged in heinous acts as “no reasonable person would have interpreted the parody as factual claims” (Hustler Magazine vs. Falwell, 1988) and, the right to burn an American flag as the conduct was “an expression in a protest” (Texas vs. Johnson, 1989).

Snyder vs. Phelps (2010), one of the most highly publicized First Amendment Supreme Court cases, occurred in this decade. Phelps, a minister at Westboro Baptist Church, and his followers engaged in anti-American hate speech at military funerals to protest “America’s tolerance of homosexuality.” Typical signs were “God Hates the USA, “Thank God for 9/11,” “Thank God for Dead Soldiers,” and “Don’t Pray for the USA.”

At the 2006 funeral of Lance Cpl. Matthew Snyder (USMC), who was killed in Iraq in the line of duty, the protesters displayed hate speech signs on public grounds across the street from the funeral. The signs read, “You’re Going to Hell” and “God Hates Fags” among other hateful statements. The Supreme Court held that Phelps and his followers were “speaking” on matters of public concern on public property and, thus, were entitled to protection under the First Amendment.

With free speech protected in all of the above cases, will Bryan Craig prevail in his $1 million lawsuit against the school district for firing him from his school counseling job after writing “It’s Her Fault,” an explicit book about women pleasing men sexually? Let’s examine how the courts will treat Craig’s free speech.

In September 2012, Brian Craig, a school counselor and girls’ basketball coach at an Illinois high school, received a letter from the school district stating it had received concerns from members of the school district community regarding the publication of his book. The school board unanimously voted to terminate Craig, citing a violation of district policies. “Mr. Craig’s conduct in this matter fell far short of our expectations and evoked outrage for me, members of this board and many others in this district who have come to expect the highest level of professionalism and sound judgment from the people they entrust with their children each day,” said the school board president. The school district explained that Craig had caused disruption, concern, distrust and confusion among members of the school district community; violated a policy prohibiting conduct that creates an intimidating, hostile or offensive educational environment; and, failed to properly comport himself in accordance with his professional obligations as a public school educator.

Craig filed suit charging he was terminated in violation of his First Amendment rights, arguing that the book was of public interest meant to give women a road map to having the upper hand in relationships with men. The district court dismissed Craig’s suit because his book did not address a matter of public concern and thus was not entitled to First Amendment protection. On appeal, the 7th Circuit Court of Appeals upheld the district court decision but for different reasons. The 7th Circuit agreed that the book met the standard of public concern as adult relationship dynamics is “a subject that interests a significant segment of the public.” The designation of public concern entitled Craig’s speech to special protection because of the long-held First Amendment value protecting public debate to be uninhibited, robust and wide-open with regard to public issues.

Since Craig’s speech met the criteria of public concern on what grounds did the 7th Circuit court rule in favor of the district and against Craig? Having determined that the speech was a matter of public concern, the 7th Circuit Court turned attention to the context and circumstances of the speech and evaluated what was said; when, where and how it was said; and whether the school district’s interests in restricting Craig’s speech outweighed his First Amendment speech rights.

Craig linked the book to his place of employment, and he did so in a most disturbing way. Craig, in qualifying his expertise to write a book on instructing women in the techniques to please men, wrote in the introduction, “I coach girls basketball, work in an office where I am the only male counselor and am responsible for 425 high school students a year, about half of whom are females. Suffice it to say, I have spent a considerable amount of time around, and with, the fairer sex.” Craig also thanked his students in the acknowledgements. Craig referred to his role as a school counselor in the book, talking about females in his counseling sessions and females on his basketball team. Craig’s intertwining of his free expression to his employment was significant to the outcome of this case.

The school district’s interest in Craig’s ability to work effectively as a school counselor outweighed Craig’s First Amendment rights. The court noted that female students who knew about Craig’s views in the book would be reluctant to seek his career, college or relationship advice. Craig’s professed “inability to refrain from sexualizing females” might make some female students loath to get advice from him. “If Craig fails to create the appropriate environment for his students they will not approach him and he cannot do his job” (7th Circuit, 2013).

Educators, especially school counselors, have First Amendment rights, but those rights are not absolute. Even speech determined to be a matter of public concern and entitled to special protection under the First Amendment is not unfettered when balanced against a school districts’ need to protect students. School counselors are held to a high standard of care and professionalism in working with minors in schools. The professionalism school counselors owe to students is extensive as the school counselor/student relationship is often more on a personal level, engendering the student’s need for even more trust in the school counselor than normally expected of educators.

Students are school counselors’ primary clients. However, because school counselors are part of an educational community their loyalty and obligation extends to parents/guardians, teachers, administrators, the school district and the community. School counselors must understand the prevailing standards of the community and work within those standards. Craig ignored community standards, the fact that he was in loco parentis to students, his obligations to parents, the paramount need for the trusting relationship and the expectation that someone who works with minors in a mandated setting such as schools has to hold oneself to a very high standard. The 7th Circuit court said, “The fact that Craig works closely with students at a public school as a counselor confers upon him an inordinate amount of trust and authority,” and the court found that the requisite trust and authority trumped his First Amendment rights (Craig vs. Rich Twp. High Sch. Dist. 227, 13-1398, 2013 WL 6235856 (7th Cir. Dec. 3, 2013).

Carolyn Stone, Ed.D., is a professor at the University of North Florida and chair of ASCA’s Ethics Committee. She can be reached at cstone@unf.edu.

For Discussion
Enter into a discussion with other professionals around the following points:
• Should school counselors be expected to exercise a higher standard of care than other educators given the uniqueness of their work in the social/emotional arena?
• Consider the unique preparation of school counselors, which emphasizes confidentiality and the foundation of trust on which the profession is built. Does this place the school counselor in a heightened position of trust when it comes to protecting the social/emotional well-being of children in our care (even more so than the principal)?
• When you’re in a professional position, especially one where you’re interacting with children and parents, do you have to be above reproach?