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.

____________

ARGUED SEPTEMBER 24, 2007—DECIDED NOVEMBER 15, 2007

____________

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, additional 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 together. 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 differences” 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 Christians; and it is a fair guess that atheists and other nonChristians 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 random 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 communities”), programs advocating teenagers to abstain from

sex are not effective. Christopher Trenholm et al., “Impacts of Four Title V, Section 510 Abstinence Education 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 subject 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 Establishment 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. Department 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 curriculum, 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 contraception 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 decided not to renew her contract. She makes the strange

argument that her advocacy of abstinence and disapproval 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 contraception (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