two factors. The first is whether the school could reasonably find that showing the film offended the "legitimate pedagogical concerns" of the school, given the considerations stated in the earlier discussion of the school's right to establish the contents of the curriculum. The second factor is the severity of the sanction. Thus, the standard stated here is less deferential than a standard of "could a reasonable person find the assigned material inappropriate." In some situations, materials used could be deemed inappropriate, yet termination would be unreasonable. It is not reasonable to fire a teacher for any indiscretion; the indiscretion must be of significant enough importance to justify such a severe sanction. The standard adopted here provides for substantial deference to the judgment of the school administration, yet tempers that deference with a recognition of the chilling effect that results from so severe a sanction when no previously publicized rule is violated.
Applying this standard to the case before the court, and keeping in mind the standard of substantial likelihood of success on the merits, as it relates to the motion for a preliminary injunction, the court finds that there is not a substantial likelihood that plaintiff will be able to demonstrate that the school's decision not to enter into a new one year contract with her was unreasonable. The court expresses no opinion of whether it agrees with the decision. Rather, the court finds that the extent of the vulgarity and sexual explicitness in the film was such that it is likely that the evidence will demonstrate that the school could reasonably have determined that its showing was a serious indiscretion. The school could further reasonably have found that the length of the film indicates that its showing was more than an inadvertent mistake or a mere slip of the tongue, but rather was a planned event, and thus indicated that the teacher's approach to teaching was problematic. See Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973) (school has right to fire teacher because of displeasure with her pedagogical attitude as demonstrated by a number of occurrences).
Having determined that plaintiff does not have a substantial likelihood of success on the merits, the court turns to the other three factors to be considered in deciding whether to issue a preliminary injunction. However, the court notes that the merits of the dispute are often intertwined with the other three factors. Libertarian Party of Indiana v. Packard, 741 F.2d 981, 985 (7th Cir. 1984).
On the issue of irreparable injury, plaintiff points out that the loss of First Amendment freedoms constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (plurality opinion); Packard, 741 F.2d at 985. However, the court has found that plaintiff has no substantial likelihood of demonstrating that she was deprived of her First Amendment rights. Therefore, the "irreparable injury" factor does not weigh heavily in the court's decision in this particular case.
In weighing the threatened injury to plaintiff against the threatened harm an injunction may inflict on defendants, the court finds that the harm in either case is severe. For an employee, loss of employment is a severe harm. For an employer, being forced to retain an employee it wishes not to employ is also a severe harm. The fact that the teacher in this case is near tenure raises the stakes equally for both parties. For plaintiff, becoming tenured is highly desirable, and for defendants, preventing teachers it deems inadequate from becoming tenured is a vital concern. The court considers any threatened injury to plaintiff in the form of deprivation of First Amendment rights to be a minimal factor in balancing the threatened harms in this case, given the court's finding on the merits. Thus, the balancing of injuries factor favors neither party.
Finally, the court determines that the "public interest" factor is indistinguishable from the merits issue in this case. The public has interests both in school administrations shaping the content of what is taught to children in public schools and in protection of teachers' academic freedom. The public interest relevant to this case is that the court properly balance these concerns. That balancing forms the essence of the court's discussion of the merits. Consequently, the court finds that issuance of the injunction would not serve the public interest.
The court has scrutinized the four factors to be considered in deciding whether to issue a preliminary injuction. Under the facts of this case, the "substantial likelihood of success on the merits" factor weighs most heavily in the court's decision. The court finds that plaintiff is unlikely to demonstrate that the school administration's decision not to enter into a new one year contract with her violated her First Amendment rights, even if she can demonstrate that her showing of a sexually explicit film containing vulgar language entitled "About Last Night" to her third year high school class was a substantial factor in the decision not to renew her one year contract. Therefore, the motion for a preliminary injunction is denied. This case is set for status and/or the setting of a date for a trial on the merits on May 12, 1989.
IT IS SO ORDERED.
DATED: April 24, 1989