Grossman, Kathryn v. South Shore Public

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4294
KATHRYN GROSSMAN,
Plaintiff-Appellant,
v.
SOUTH SHORE PUBLIC SCHOOL DISTRICT, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06-C-288-S—John C. Shabaz, Judge.
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ARGUED SEPTEMBER 24, 2007—DECIDED NOVEMBER 15, 2007
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Before POSNER, FLAUM, and WOOD, Circuit Judges.
POSNER, Circuit Judge. The plaintiff was hired by the
defendant public school district in 2002 on a three-year
probationary contract to be a guidance counselor at the
public school of the tiny town of Port Wing (population
less than 500) on the south shore of Lake Superior. The
school has grades kindergarten through twelfth grade.
When three years later it was time to decide whether to
renew her contract, which would have given her lifetime
tenure, so that she could not have been fired without just
cause, the school district decided against renewal, precipi-
2 No. 06-4294
tating this suit. In it she charges that the district’s decision
was based on hostility to her religious beliefs, and so
violated both Title VII of the Civil Rights Act of 1964 and
the free-exercise clause of the First Amendment. The
district court granted summary judgment for the school
district, and also for the school administrators, addi-
tional defendants whom we need not discuss separately;
nor need we discuss the plaintiff’s constitutional claim.
Shortly after she began work, she discovered in her
office some literature designed to instruct students in the
use of condoms. She threw out the literature without
consulting her supervisors and, also without consulting
them, ordered literature advocating abstinence to replace
the discarded condom literature. Then, on graduation day
in the plaintiff’s first year, the student who was to give the
graduation speech came to her with a bad attack of nerves.
The plaintiff asked whether she could pray with her about
the speech and the student agreed and they prayed to-
gether. The same thing happened the following year
when a 12-year-old student, upset about her mother’s
having miscarried, came to the plaintiff in tears.
In the plaintiff’s memorandum of a meeting with the
school superintendent after she learned that her contract
would not be renewed, under the heading “philosophical
[issues],” we read that the superintendent’s concerns
about her were “too much religion,” “6 pregnant teen
parents,” and “2 Reports of prayer.” The plaintiff’s notes
of a subsequent, similar meeting list her supervisors’
concerns under the heading of “religion” as separation of
church and state and the first incident of praying with a
student, and under the heading of “philosophical differ-
ences” birth control and abstinence. Notes of another
participant at that meeting record concern that “faith
No. 06-4294 3
controlled her philosophy,” that she did not make a “good
fit” with the school, and that she “believed in” abstinence.
Apart from matters relating to religion, her performance
as a guidance counselor was exemplary.
The school district states the issue to be whether the
plaintiff was discriminated against on account of her being
a Christian. That is not correct. The supervisors are Chris-
tians; and it is a fair guess that atheists and other non-
Christians do not pull the strings at Port Wing’s sole public
school. With 838 churches (116 of them Lutheran—the
plaintiff’s denomination, though there are different sects
within Lutheranism) within about 40 miles of tiny Port
Wing, it can hardly be a region hostile to Christianity. The
issue is whether the plaintiff’s specific religious beliefs
were a ground for her not being retained. It would not be
out of the question for a public employee to be fired
because her supervisors, though also Christian, did not
like her brand of Christianity, though there is no evidence
(besides the treatment of the plaintiff) of religious strife
in Port Wing’s public school.
The school district’s better argument is that, as far as the
record shows, the plaintiff was let go not because of her
beliefs but because of her conduct. We are not told the
size of the student body at Port Wing’s public school, but
it cannot be very large; the entire population of Bayfield
County, the sprawling rural county in which Port Wing
is located, is only 15,000. Six teenage pregnancies among
the students at the school seem like a lot, and it is easy to
understand how the people running the school would
think it imprudent to retain a guidance counselor who
throws out pamphlets instructing in the use of condoms
and replaces them with pamphlets advocating abstinence.
According to a federally sponsored study that “compare[d]
4 No. 06-4294
outcomes for two statistically equivalent groups—a
program group and a control group—created by ran-
dom assignment, . . . [in which] youth in the program
group were eligible to receive the abstinence education
program services, while those in the control group were
not, and received only the usual health, family life, and sex
education services available in their schools and communi-
ties”), programs advocating teenagers to abstain from
sex are not effective. Christopher Trenholm et al., “Im-
pacts of Four Title V, Section 510 Abstinence Educa-
tion Programs” (Mathematica, Inc., Apr. 2007), www.
mathematica-mpr.com/tabstinencereport.asp (visited Oct.
4, 2007); Laura Sessions Stepp, “Study Casts Doubt on
Abstinence-Only Programs,” Wash. Post, Apr. 14, 2007, p.
A2; cf. Gerald S. Oettinger, “The Effects of Sex Education
on Teen Sexual Activity and Teen Pregnancy,” 107 J. Pol.
Econ. 606 (1999). In addition, while it seems unlikely that
this rural school district is in serious danger of being
sued for violating the establishment clause of the First
Amendment just because the school guidance counselor
discarded condom literature and volunteered to pray
with a total of (as far as the record discloses) only two
students in three years, religion is such a sensitive sub-
ject that it is understandable why the school authorities
would be worried by such incidents.
Even some (perhaps many) religious parents would
not like a teacher or other employee of the school praying
with their children, or advocating abstinence as the sole
method of birth control. “Families entrust public schools
with the education of their children, but condition their
trust on the understanding that the classroom will not
purposely be used to advance religious views that may
conflict with the private beliefs of the student and his or
No. 06-4294 5
her family.” Edwards v. Aguillard, 482 U.S. 578, 584 (1987).
Guidelines issued by the federal Department of Education
provide that “when acting in their official capacities as
representatives of the state, teachers, school administrators,
and other school employees are prohibited by the Estab-
lishment Clause from encouraging or discouraging prayer,
and from actively participating in such activity with
students.” “Guidance on Constitutionally Protected Prayer
in Public Elementary and Secondary Schools,” U.S. Depart-
ment of Education,” Feb. 7, 2003, www.ed.gov/policy/
gen/guid/religionandschools_guidance.html (visited Oct.
9, 2007).
Teachers and other public school employees have no
right to make the promotion of religion a part of their
job description and by doing so precipitate a possible
violation of the First Amendment’s establishment clause,
e.g., Lamb’s Chapel v. Center Moriches Union Free School
District, 508 U.S. 384, 394 (1993); Lee v. Weisman, 505 U.S.
577, 593-98 (1992); Helland v. South Bend Community School
Corp., 93 F.3d 327, 331 n. 1 (7th Cir. 1996); Marchi v. Board
of Cooperative Educational Services of Albany, 173 F.3d 469,
475-76 (2d Cir. 1999); Peloza v. Capistrano Unified School
District, 37 F.3d 517, 522 (9th Cir. 1994) (per curiam), even
if the religious composition of the local community makes
a legal challenge unlikely. The First Amendment is “not a
teacher license for uncontrolled expression at variance
with established curricular content.” Palmer v. Board of
Education, 603 F.2d 1271, 1273 (7th Cir. 1979); see also
Mayer v. Monroe County Community School Corp., 474 F.3d
477 (7th Cir. 2007).
Even if it is certain that there is no danger of a suit, the
school authorities have a right to control the school cur-
riculum, Webster v. New Lenox School District No. 122, 917
6 No. 06-4294
F.2d 1004, 1007-08 (7th Cir. 1990), and, equally, to control
the policies of its guidance counselors and other staff. (Staff
that interact with students play a role similar to teachers.)
So the plaintiff is right to concede that the Port Wing
school administrators could forbid her to pray with
students or to urge abstinence on them in lieu of contra-
ception as a method of avoiding pregnancy. It is not as if
they would be discriminating against religion by doing
these things, as they would be if they forbade students to
form or join religious societies while allowing them to
form or join secular ones. E.g., Good News Club v. Milford
Central School, 533 U.S. 98, 111-12 (2001); Lamb’s Chapel v.
Center Moriches Union Free School District, supra, 508 U.S.
at 394.
It would be different if the plaintiff’s religious conduct
had merely tipped off her supervisors to the fact that
she held religious beliefs that they find repulsive and it
was her beliefs, not her conduct, that precipitated their
refusal to renew her contract. That is the plaintiff’s theory
of the case, but there is too little evidence to create an
issue for trial. The only religious beliefs that the plaintiff’s
conduct signaled were that teenage sex is bad and that
prayer is efficacious, and these views are almost certainly
shared by the Christian school administrators who de-
cided not to renew her contract. She makes the strange
argument that her advocacy of abstinence and disap-
proval of contraception marked her as an evangelical
Christian, forgetting that the Catholic Church considers
the use of contraceptives a mortal sin and that most other
Christian sects as well disapprove of nonmarital sex. Were
a jury to find that the school administrators wouldn’t
have refused to renew the plaintiff’s contract had it not
been for her religious beliefs, the judge would have to
No. 06-4294 7
set aside the verdict as based on speculation rather than
on a defensible view of the evidence.
For at bottom the plaintiff has nothing to go on besides
the words “philosophy” and “philosophical” in the notes
of her conferences with her supervisors, as if the school
administrators had engaged her in a theological debate.
They had not. The reference to her preferring abstinence
as a strategy for preventing teenage pregnancy to contra-
ception (and likewise the references to her “belief” in
abstinence and her not making a “good fit” with the
school) related to her approach to the problem of teenage
pregnancy rather than to her theological views. Those
views were the cause of her approach, but so far as the
record shows it was the approach that concerned the
school administrators. So summary judgment was rightly
granted for the defendants. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-52 (1986).
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-15-07