Boring v. Buncombe County Board of Education , 136 F.3d 364 ( 1998 )

Affirmed by published opinion. Judge WIDENER wrote the majority opinion, in which Chief Judge WILKINSON, Judge RUSSELL, Judge WILKINS, Judge NIEMEYER, Judge LUTTIG and Judge WILLIAMS joined. Chief Judge WILKINSON wrote a concurring opinion. Judge LUTTIG wrote a concurring opinion, in which Judge WILKINS and Judge WILLIAMS joined. Judge HAMILTON wrote a dissenting opinion, in which Judge MURNAGHAN joined. Judge Motz wrote a dissenting opinion, in which Judge HALL, Judge Murnaghan, Judge ERVIN, Judge HAMILTON and Judge MICHAEL joined.

OPINION

WIDENER, Circuit Judge:

The only issue in this case is whether a public high school teacher has a First Amendment right to participate in the makeup of the school curriculum through the selection and production of a play. We hold that she does not, and affirm the judgment of the district court dismissing the complaint.

I.

Margaret Boring, was a teacher in the' Charles D. Owen High School in Buncombe County, North Carolina. In the fall of 1991, she chose the play Independence for four, students in her advanced acting class to perform in an annual statewide competition. She stated in her amended .complaint that the play “powerfully depicts the dynamics within a dysfunctional, single-parent family— a divorced mother and three daughters; one a lesbian, another pregnant with an illegitimate child.” She alleged that after selecting the play, she notified the school principal, as she did every year, that she had chosen Independence as the play for the competition. She does not allege that she gave the principal any information about the play other than the name.

The play was performed in a regional competition and won 17 of 21 awards. Prior to the state finals, a scene from the play was performed for an English class in the school. Plaintiff informed the-teacher of that class that the play contained mature subject matter and suggested to the teacher that the students bring in parental permission slips to see the play. Following that performance, a parent of one of the students in the English class complained to the school principal, Fred Ivey, who then asked plaintiff for a copy of the script. After reading the play, Ivey informed plaintiff that she and the students would not be permitted to perform the play in the state competition.

Plaintiff and the parents of the actresses performing the play met with Ivey urging him not to cancel the production. Ivey then agreed to the production of the play in the state competition, but with certain portions deleted. The¹ complaint states that the students performed the play in the state competition and won second place. The complaint does not state, but we assume, that the play was performed in accordance with Ivey’s instructions.

In the summer of 1991 the school moved to a new facility which had a maple stage floor in the auditorium. At the time of the move, plaintiff discussed with Ivey the problems with mounting productions on the maple floor. Ivey suggested using plywood as a temporary surface over the maple floor but instructed plaintiff to obtain approval before doing any construction work in the auditorium. In the spring of 1992, plaintiff advised Ivey that she needed to construct sets for the production of a musical. Ivey responded that he understood the need for sets and that prior approval was intended to apply only to the construction of fixtures. In preparation for the musical, the surface of the maple floor of the stage was covered with plywood fixed to the floor with screws. When the plywood was removed after the play, the floor had to be refinished because of the holes left by the screws.

In June 1992-, Ivey requested the transfer of Margaret Boring from Owen High School, citing “personal conflicts resulting from actions she initiated during the course of this school year.” Superintendent Yeager approved the transfer stating that she had failed to follow the school system’s controversial materials policy in producing the play. Plaintiff states that the purpose of the controversial materials policy is to give the parents some control over the materials to which their children are exposed in school. She alleges that at the time of the production, the controversial materials policy did not cover dramatic presentations, and that the school’s policy was amended subsequently to include dramatic presentations.

Plaintiff appealed the transfer to the Board of Education. A hearing was held on September 2, 1992, following which the Board upheld the transfer. Plaintiff alleges that prior to the hearing there was considerable public discussion of the transfer, including that the play was obscene and that she was immoral. She alleges that members of the school board asked questions at the hearing that demonstrated their consideration of matters outside the evidence presented at the hearing.

Plaintiff filed the present action on January 10,1994. Her amended complaint claims that her transfer was in retaliation for expression of unpopular views through the production of the play and thus in violation of her right to freedom of speech under the First and Fourteenth Amendments and Article I, § 14 of the North Carolina Constitution. She also claimed a violation of due process under the Fourteenth Amendment and Article I, § 19 of the North Carolina Constitution based on the allegation that members of the school board considered information that was not presented at the hearing; and a violation of a liberty interest under Article I, §§ 1 and 19 of the North Carolina Constitution.

The district court construed the complaint broadly. Not only did it address plaintiffs federal First Amendment claim, it considered claims plaintiff may have made under the federal due process clause of the Fourteenth Amendment; a federal liberty interest claim under the Fourteenth Amendment; a state claim for violation of free speech; a state claim for deprivation of due process; and a state claim for deprivation of liberty. It decided against the plaintiff on each of these claims.

Plaintiff appeals only the dismissal of her federal First' Amendment claim. A divided panel of this court reversed the district court’s dismissal of that claim which decision was vacated by the order of the en banc court which granted rehearing. Boring v. Buncombe County Bd. of Educ., 98 F.3d 1474 (4th Cir.1996), vacated by order of December 3, 1996. We now affirm the judgment of the district court holding that the plaintiffs selection and production of the play Independence as part of the school’s curriculum was not protected speech under the First Amendment.

We review a dismissal for failure to state a claim de novo, drawing all reasonable inferences in favor of the plaintiff and accepting the allegations that are stated in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.), cert. denied, 510 U.S. 828, 114 S.Ct. 93, 126 L.Ed.2d 60 (1993).

II.

The district court held that the play was a part of the school curriculum and:

Since plaintiff has not engaged in protected speech, her transfer in retaliation for the play’s production did not violate Constitutional standards. (A.71)

With this holding, the plaintiff takes issue on appeal as follows:

Whether the district court erred in holding that plaintiffs act of selecting, producing and directing a play did not constitute “speech” within the meaning of the First Amendment. (Boring’s brief, p. vi)

We begin our discussion with the definition of curriculum:

3: all planned school activities including besides courses of study, organized play, athletics, dramatics, clubs, and homeroom program.

Webster’s Third New International Dictionary, 1971, p. 557.

Not only does Webster include dramatics within the definition of curriculum, the Supreme Court does the same. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), a case involving student speech in a school newspaper which was edited by the principal of a high school, the Court distinguished cases which require a school to tolerate student speech from those cases in which the school must affirmatively promote student speech. Although in different context, the reasoning of the Court as to what constitutes the school curriculum is equally applicable here.

The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences [footnote omitted].

Hazelwood, 484 U.S. at 271, 108 S.Ct. at 570.

It is plain that the play was curricular from the fact that it was supervised by a faculty member, Mrs. Boring; it was performed in interscholastic drama competitions; and the theater program at the high school was obviously intended to impart particular skills, such as acting, to student participants. These factors demonstrate beyond doubt that “students, parents, and members of the public might reasonably perceive [the production of the play Independence ] to bear the imprimatur of the school.” Hazelwood, 484 U.S. at 271, 108 S.Ct. at 570.

So there is no difference between Webster’s common definition and that of Hazelwood.

III.

With these thoughts in mind, we are of opinion that the judgment of the district court is demonstrably correct.

A.

Plaintiffs selection of the play Independence, and the editing of the play by the principal, who was upheld by the superintendent of schools, does not present a matter of public concern and is nothing more than an ordinary employment dispute. That being so, plaintiff has no First Amendment rights derived from her selection of the play Independence.

This principle was illustrated in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), in which the Court upheld the firing of an assistant district attorney who had circulated a questionnaire questioning the manner in which the district attorney operated that office. The Court held that “if Myers’ questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge.” Connick at 146, 103 S.Ct. at 1690. Because the questionnaire almost wholly concerned internal office affairs rather than matters of public concern, the court held that, to that extent, it would not upset the decision of the district attorney in discharging Myers.¹ It stated:

We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.

Connick at 147, 103 S.Ct. at 1690.

We followed Connick in DiMeglio v. Haines, 45 F.3d 790 (1995), in which we upheld the transfer of a public employee who had insisted on advising some affected citizens as to the merits of a zoning dispute contrary to the instructions of his employer. We stated “a government employer, no less than a private employer, is entitled to insist upon the legitimate, day-to-day decisions of the office without fear of reprisals in the form of lawsuits from disgruntled subordinates who believe that they know better than their superiors how to manage office affairs.” DiMeglio at 806.

In a case on facts so near to those in the case at hand as to be indistinguishable, the Fifth Circuit came to the conclusion we have just recited in Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir.1989), cert. denied, 496 U.S. 926, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990). Kirkland was a case in which the employment contract of a high school history teacher was not renewed. He alleged the nonrenewal was a consequence of, and in retaliation for, his use of an unapproved reading list in his world history class. The high school had provided the teacher with a supplemental reading list for his history class along with a copy of the guidelines used to develop and amend that list. He was aware of the guidelines and understood that if he was dissatisfied, a separate body of reading material could be used in his class if he obtained administrative approval. The teacher, however, used his own substitute list and declined to procure the approval of the school authorities for his 'substitute list. The authorities at his high school then recommended that his contract not be renewed at the end of the next academic year, which was affirmed by the board of trustees, much like Margaret Boring’s transfer was affirmed by the school board in this ease after a recommendation by the administrative authorities.

The court held that to establish his constitutional claim, Kirkland' must have shown that his supplemental reading list was constitutionally protected speech; not different from Mrs. Boring’s selection of the play Independence in this case. It went on to hold that under Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the question of whether a public employee’s speech is constitutionally protected depends upon the public or private nature of such speech. It decided that the selection of the reading list by the teacher was not- a matter of public concern and stated that:

Although, the concept of academic freedom has been recognized in our jurisprudence, the doctrine has never conferred upon teachers the control of public school curricula. [footnote omitted]

890 F.2d at 800. And the Kirkland court recognized that Hazelwood held that public school officials, consistent with the First Amendment, could place reasonable restrictions upon the subject matter of a student published newspaper and also that schools are typically not public forums.

The court stated that “[w]e hold only that public school teachers are not free, under the first amendment, to arrogate control of curricula,” 890 F.2d at 802, and concluded as follows:

In summary, we conclude that Kirkland’s world history reading list does not present a matter of public concern and that this case presents nothing more than an ordinary employment dispute. Accordingly, Kirkland’s conduct in disregarding North-side’s administrative process does not constitute protected speech____

890 F.2d at 802.

Since plaintiffs dispute with the principal, superintendent of schools and the school board is nothing more than an ordinary employment dispute, it does not constitute protected speech and has no First Amendment protection. Her ease is indistinguishable from Kirkland’s.

B.

The plaintiff also contends that the district court erred in holding that the defendants had a legitimate pedagogical interest in punishing plaintiff for her speech. Of course, by speech, she means her selection and production of the play Independence.

As .we have previously set out, the play was a part of the curriculum of Charles D. Owen High School, where plaintiff taught. So this contention of the plaintiff is in reality not different from her first contention, that is, she had a First Amendment right to participate in the makeup of the high school curriculum, which could be regulated by the school administration only if it had a legitimate pedagogical interest in the curriculum. While we are of opinion that plaintiff had no First Amendment right to insist on the makeup of the curriculum, even assuming that she did have, we are of opinion that the school administration did have such a legitimate pedagogical interest and that the holding of the district court was correct.

Pedagogical is defined as “2: of or relating to teaching or pedagogy. EDUCATIONAL.” Webster’s Third New International Dictionary, 1971, p. 1663. There is no doubt at all that the selection of the play Independence was a part of the curriculum of Owen High School.

The makeup of the curriculum of Owen High School is by definition a legitimate pedagogical concern. Not only does logic dictate this conclusion, in only slightly different context the Eleventh Circuit has so held as a matter of law: “Since the purpose of a curricular program is by definition ‘pedagogical’____” Searcey v. Harris, 888 F.2d 1314, 1319 (11th Cir.1989). Kirkland, 890 F.2d at 795, held the same in the same context present here.

If the performance of a play under the auspices of a school and which is a part of the curriculum of the school, is not by definition a legitimate pedagogical concern, we do not know what could be.

In our opinion, the school administrative authorities had a legitimate pedagogical interest in the makeup of the curriculum of the school, including the inclusion of the play Independence. The holding of the district court was correct and the plaintiffs claim is without merit.

IV.

The question before us is not new. From Plato to Burke, the greatest minds of Western civilization have acknowledged the importance of the very subject at hand and have agreed on how it should be treated.

For a young person cannot judge what is allegorical” and what is literal; anything that he receives into his mind at that age is likely to become indelible and unalterable; and therefore it is most important that the tales which the young first hear should be models of virtuous thoughts.

Plato’s Republic: Book II, Jowett Translation, Walter J. Black, Inc., 1942, p. 281.

The magistrate, who in favor of freedom thinks himself obliged to suffer all sorts of publications, is under a stricter duty than any other well to consider what sort of writers he shall authorize, and shall recommend by the strongest of all sanctions, that is, by public honors and rewards. He ought to be cautious how he recommends authors of mixed or ambiguous morality. He ought to be fearful of putting into the hands of youth writers indulgent to the peculiarities of their own complexion, lest they should teach the humors of the professor, rather then the principles of the science.

Letter to a Member of the National Assembly (1791). IV, 23-34, found in The Philosophy of Edmund Burke, University of Michigan Press, 1960, p. 247.

And Justice Frankfurter, in concurrence, related' the four essential freedoms of a university, which should no less obtain in public schools unless quite impracticable or contrary to law:

It is an atmosphere in which there prevail “the four essential freedoms” of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.

Sweezy v. New Hampshire, 354 U.S. 234, 255, 263-264, 77 S.Ct. 1203, 1218, 1 L.Ed.2d 1311 (1957) (quoting from a statement of a conference of senior scholars from the University of Cape Town and the University of the Witwatersrand, including A. v. d. S. Centlivres and Richard Feetham, as Chancellors of the respective universities [footnote omitted]).

We agree with Plato and Burke and Justice Frankfurter that the school, not the teacher, has the right to fix the curriculum. Owens being a public school does not give the plaintiff any First Amendment right to fix the curriculum she would not have had if the school were private. Connick, 461 U.S. at 147, 103 S.Ct. at 1690.

Someone must fix the curriculum of any school, public dr private. In the case of a public school, in our opinion, it is far better public policy, absent a valid statutory directive on the subject, that the makeup of the curriculum be entrusted to the local school authorities who are in some sense responsible, rather than to the teachers, who would be responsible only to the judges, had they a First Amendment right to participate in the makeup of the curriculum.

The judgment of the district court is accordingly

AFFIRMED ², ³

1 . The last item, that of- a question relating to pressuring employees to work in political campaigns on behalf of office supported candidates, the Court considered to be of "limited First Amendment interest.” It held that Myers’ discharge did not offend the First Amendment because the district attorney "reasonably believed that [the question] would disrupt the office.” Connick at 154, 103 S.Ct. at 1694.

2 . It is appropriate to add what we have not decided. This is not a case concerning pupil speech, as in Hazelwood, either classroom or otherwise. This case concerns itself exclusively with employee speech, as does Connick, whether or not a public high school teacher has a First Amendment right to insist on a part of the curriculum of the school. The case does not concern any right a teacher might have to participate in the makeup of the curriculum of a public high school other than the right claimed here under the First Amendment. "Perhaps the government employer’s dismissal of the worker may not be fair, but ordinaiy dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.” Connick at 146-147, 103 S.Ct. at 1690.

Plaintiff's contention that she was not given notice as to what was being proscribed is, of course, without merit, the plaintiff having no First Amendment right to participate in the makeup of the curriculum.

3 . The dissenting opinion of Judge Motz takes issue with the issue in the case as stated by the majority.

As stated by the majority:

The only issue in this case is whether a public high school teacher has a First Amendment right to participate in the make up of the school curriculum through the selection and production of a play. We hold that she does not....

Slip, p. 366.

As stated by Judge Motz:

The majority holds that a teacher's speech in selecting, producing, and directing a school play deserves "no First Amendment protection.” Ante at p. 369,1 cannot agree....

Dissenting opinion of Judge Motz at p. 375.

The dissent departs, however, from its plain statement of the issue, which is not different from that in Mrs. Boring's brief, p. vi, and on page 376 adopts as the issue an argument of Mrs. Boring, which is she "argues that having passed on the play prior to its production’and performance, the school does not have a right to discipline [her] in retaliation for .its use in the curriculum.” The dissenting opinion then largely proceeds on that theory of Mrs. Boring's argument, rather than the issue as above stated. That argument, however, is apparently based on some kind of due process argument, which was decided adversely to her, and which she has not appealed. This is set out in the majority opinion at p. 367.

We also note that the dissenting opinion depends, at least in part: on its parenthetical statement, at p. 378, that "[t]he majority apparently does not contest one portion of the panel’s (now vacated) holding, see Boring, 98 F.3d at 1478-1479, i.e., that Boring's selection and production of the play constitute speech for purposes of the First Amendment.” The insistence on significance of the fact that the majority does not contest a vacated holding of the panel is puzzling, at least, and is worthy of mention only to note that the dissent of Judge Motz emphasizes, as well as does that of Judge Hamilton, that neither logic, nor precedent, nor the wisdom of the ages, supports their position on the issue as stated by Mrs. Boring in her brief on p. vi and restated here on page 367. The dissents erroneously continue to equate "speech” with "protected speech."