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Court Upholds Three-Day Suspension of "Third-Grade Math and Science Teacher" for Maintaining "LGBTQ+"-Themed Books in Classroom
An excerpt from Monday's long decision by Judge Douglas Cole (S.D. Ohio) in Cahall v. Cole New Richmond Exempted Village School Dist. Bd. of Ed.:
Plaintiff Karen Cahall is a third-grade math and science teacher …. The District, acting through one of the other individual Defendants—Superintendent Tracey Miller—imposed a three-day unpaid suspension on Cahall, asserting that she had violated the District's "controversial issues" policy based on certain reading materials she made available to the students in her classroom….
Cahall maintains a collection of books in her classroom that she makes available to students to read during in-class free time, but that she does not otherwise use in connection with instructing the students. The instant controversy arose when a parent complained about some of the books that Cahall included in that collection. In particular, in light of recent events that had occurred at the school (more on that below), Cahall decided to add four books to her collection: Ana on the Edge; The Fabulous Zed Watson; Hazel Bly and the Deep Blue Sea; and Too Bright to See.
As Cahall describes them, these books "each deal with characters who are LGBTQ+ and are coming to terms with feeling different and excluded simply because they are LGBTQ+." According to Cahall, the books "serve to reinforce [her] sincerely held moral and religious beliefs that all children, including children who are LGBTQ+ or the children of parents who are LGBTQ+, deserve to be respected, accepted, and loved for who they are."…
Cahall says her decision to add these books to her classroom collection grew out of what she describes as an earlier "controversy in the New Richmond District." According to Cahall, just before the 2021–22 school year, the District was considering allowing teachers to "wear Rainbow stickers on their name tags, or to display them on laptop cases or desk nameplates to show that [the teachers] were safe for LGBTQ+ students to confide in or to seek advice from." The District was also considering whether to provide students forms on which they could designate their "preferred gender identity preferred pronouns and name."
Word got out, though, and the District received "numerous complaints from community members" opposing those policies. As a result, the Board elected not to move forward with either plan. That in turn led still other members of the New Richmond community, this time those who supported LGBTQ+ rights, to register their disapproval of that decision at a public Board meeting on September 21, 2021. But that did not change the Board's decision.
After the debate and concerned about how societal prejudice might impact LGBTQ+ students, Cahall conducted research in an effort to "educate herself regarding the emotional support needed by LGBTQ+ youth." Those efforts convinced her that these students had higher rates of "anxiety and depression," were more likely to consider or attempt suicide, and had "higher rates of alcohol and/or drug use." She also discovered that they often "experience[] difficulty and delay in obtaining mental health care."
In an effort to address those concerns and provide LGBTQ+ youth access to "safe spaces" and "safe people," Cahall added the four books mentioned above to her classroom collection. The collection itself consists of nearly 100 books, which are stored in bins. Students are free to grab books from the bins to read during free time, but, as noted above, Cahall does not assign, or teach from, the books….
Cahall claimed that the suspension was based on an unconstitutionally vague policy, but the court disagreed:
The Board adopted the policy in 2009. It governs the school's approach to the "consideration of controversial issues" in the classroom, and in particular imposes limitations on "the introduction and proper educational use of controversial issues." The policy goes on to define a "controversial issue" as "a topic on which opposing points of view have been promulgated by responsible opinion or likely to arouse both support and opposition in the community." As for the limitations relating to controversial issues, the policy provides that they "may not be initiated by a source outside the schools unless prior approval has been given by the principal." And the policy goes on to say that "[w]hen controversial issues have not been specified in the course of study, the Board will permit the instructional use of only those issues which may have been approved by the principal." According to Cahall (and confirmed by the discipline letter she attaches to her Complaint), the Superintendent concluded she had violated this policy.
[T]he Supreme Court has expressly … [held that] "'[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.'" …
That requirement imposes an insurmountable hurdle for Cahall. She argues that the terms "controversial issue" and "instructional program" in the policies are too vague. And in some abstract sense, that might be true. The exact contours of each phrase may be difficult for a "person of ordinary intelligence" to discern. But there is no question that, on the facts here, Cahall knew that the LGBTQ+-themed books that she placed in the classroom related to a "controversial issue." The policy defined "controversial issue" as including "a topic … likely to arouse both support and opposition in the community."
Indeed, Cahall was aware that LGBTQ+ issues had done just that. In response to the District's stated intention to consider being more receptive and open to such issues, parents had complained. And in response to the District's subsequent decision to retract from that position (based on those parents' complaints), other parents complained. In short, the topic was not merely "likely to arouse both support and opposition in the community," it in fact had done so.
And Cahall knew that. Indeed, in her Complaint, she specifically notes that she added the books to her collection because of a "controversy" surrounding LGBTQ+ topics, and she did so precisely because she thought that controversy damaging to the emotional health of LGBTQ+ students in her third-grade class. A teacher's desire to protect her students' emotional health is a laudable sentiment. But against this backdrop, she, or any other reasonable person of ordinary intelligence, should have known that whatever the precise contours of a "controversial issue," there was no question that it extended to the books at issue here.
Nor is there any meaningful doubt that, under the District's controversial topics policies, she should have known that making the books available to students in her classroom might subject her to discipline. As noted, both the formal policy … and the administrative guidance … make clear that books about controversial topics require pre-approval from the Principal before a teacher includes the books in her classroom supplies and makes them available to students.
Indeed, the guideline seems even broader than the policy. It covers the "selection of resource materials" for the District generally, and it provides that "[n]o print … materials which are not part of the District's basic or supplementary materials are to be used with students without prior review and approval." Certainly, the books (i.e., resource materials) that Cahall unilaterally selected to add to her in-class library were not "part of the District's basic or supplementary materials," so she perforce should have known that "prior review and approval" was necessary before they were "used with students." That the books also addressed what she knew to be "controversial topics" only heightened the prospect that discipline might be forthcoming.
At bottom, the Court agrees with Cahall that the policies here could have been drafted more clearly. And the Court even acknowledges that other teachers in other situations may lack adequate notice that the conduct in which they are engaged may subject them to disciplinary consequences under these policies. But, on the facts as alleged here, Cahall reasonably should have known that she faced the prospect of discipline. And that means that her void-for-vagueness challenge fails as a matter of law. Moreover, in light of the facts pleaded in her Complaint, there is no way that Cahall could address this shortcoming, so the Court dismisses this claim with prejudice.
The court also added,
Cahall does not base her vagueness challenge here on her First Amendment rights to free expression. And that is probably a wise choice in light of (1) case law holding that teachers do not have a First Amendment right to make "curricular and pedagogical choices" of their own liking, as well as (2) case law more generally limiting the scope of First Amendment protection in connection with public-employee work-related speech.
Tabitha Justice and Brian L. Wildermuth (Subashi, Wildermuth & Justice) represent defendants.
