EDUC 432

John Dolores, Joy Gicking, Alida McKee and Stephen Rose

April 22, 1999

Boring v. Buncombe County Board of Education

No. 95-2593 (CA-93-230)

In the fall of 1991, Margaret Boring, a teacher at Charles D. Owen High School, selected the play Independence for four of her students to perform in a state competition. The play is about a divorced mother with a lesbian daughter and another daughter with an illegitimate child. Boring told the school principal the name of the play to be performed, but did not tell the principal about its content. Before the state finals, the students performed a scene from the play in one of the school's English classes. Boring told the teacher that students should receive permission from parents to see the play. One of the parents of an English class student complained to the principal about the play. The principal, Fred Ivey, then told Boring and her students that they could not perform the play in the state finals. He changed his mind, however, after they agreed to remove certain scenes from the play.

Also, during the spring of 1992, Boring told Ivey that she needed to create new sets for a musical. Ivey told Boring that she needed approval if she wished to use plywood as temporary flooring for her musical. The plywood that was used was screwed into the floor and required the stage underneath to receive repairs after the wood was removed.

Shortly after, Ivey got the Superintendent of the school district to transfer Boring to a different high school citing "personal conflicts resulting from actions she initiated during the course of this school year." Approval was given based on the so-called "controversial materials policy." This policy was designed to give parents some control of what their children learned during school. Boring stated that she did not believe this policy included dramatic presentations.

Boring appealed the transfer to the Board of Education, but the board upheld the transfer. Boring suggested that there was a great deal of debate involving the play, including people alluding that she was immoral. Furthermore, Boring believed that school board members also looked at evidence unrelated to her hearing.

Boring filed a complaint in early 1994 that her transfer was in retaliation of her views and was a violation of her freedom of speech under the First Amendment, Fourteenth Amendment, and North Carolina Constitution. Boring also claimed a violation of due process and a violation of her liberty interest. The district court found for the defendant under each claim.

Majority Opinion:

The majority opinion is based on the assumption that the only issue in the case is whether a public high school teacher has a First Amendment right to participate in the makeup of school curriculum through the selection and production of a play. The Court decided that the selection and production of a play as a part of the school's curriculum was not protected speech under the First Amendment. Cases such as Hazlewood v. Kuhlmeier and Connick v. Myers are used as persuasive precedent in the majority opinion. The majority opinion proves that the play is part of school curriculum based on the fact that it is supervised by a faculty member and that the theater program is designed to impart particular skills, such as acting, to student participants. The public might react by associating the play with the educational goals of the school, therefore making the play a reflection of the school and its curriculum. Since the school represents the community, the play could be seen as reflecting on the community as well. The Court's reasoning as to what constitutes curriculum is taken from Hazlewood v. Kuhlmeier and the Webster's Dictionary definition of curriculum.

The majority opinion states that the plaintiff's selection of the play and the editing of the play by the principal does not constitute a matter of public concern and is nothing more than an ordinary employment dispute. Connick v. Myers is used to support this argument. The Court asserts that when an employee is not speaking as a citizen upon matters of public concern, but instead as an employee upon personal matters, the Court does not have the right to judge the employers' reaction to this behavior.

Also used by the court to reach a decision was the Kirkland v. Northside Independent School District case. The basis of this case revolved around a high school history teacher and the non-renewal of his contract, which he alleged, was a consequence of his use of an unapproved reading list in his class. The court decided that the selection of the reading list was not a matter of public concern. This case closely resembled the Boring case and was used to establish that since it was merely an employment dispute, it does not constitute protected speech and has no First Amendment protection. The Court decided that public school teachers are not free under the First Amendment to arrogate control of curricula.

In addition to the positions above, an argument from the plaintiff stated that she felt that the school had no legitimate pedagogical interest in punishing the plaintiff for her speech. In this argument, the Court utilizes the word "pedagogical" as meaning "educational." The Supreme Court felt that the administration did. School author"ties have a legitimate pedagogical interest in the makeup of curriculum, including school plays. Therefore, the Court found that the plaintiff's claim was without merit. In conclusion, the majority of the court found that the school, not the teacher, has the right to determine the curriculum.

Concurring Opinion(s):

Wilkinson states in the first opinion that the use of the "legitimate pedagogical concern" of Hazlewood v. Kuhlmeier will lead to federal courts having broad authority in deciding issues of curriculum rather than states and localities.

In the second concurring opinion, the judge agrees with the court's use of Connick v. Myers and Pickering v. Board of Education in looking at restrictions on teacher speech involving curriculum. The opinion disagrees, however, with the use of Hazlewood v. Kuhlmeier. The opinion argues that Hazlewood should be used with regard to student speech and not teacher speech. The opinion goes on to say that allowing teachers to have a right to create their own curriculum would make it impossible for schools to create a standard education. Furthermore, the use of "legitimate pedagogical concerns" as a safety net against extreme changes in curriculum would be a bad idea because it would tie up curriculum within the courts.

Dissenting Opinion(s):

Two persuasive dissents are written by Judges Hamilton and Motz in regards to the Boring case. The dissent of Judge Hamilton only adds a few different statements to Judge Motz' dissent. So, in order to simplify this discussion, the dissents will be compiled into one argument.

The dissent argues that as a result of the commotion caused by the performing of the play, Independence, the principal and the school board used Margaret Boring as a scapegoat in order to keep the heat off of them. Boring is a dedicated teacher who did not violate any aspect of the school's curriculum or policies. Boring followed the proper procedures and obeyed the wishes of her principal concerning the deletion of several scenes from the play. Boring's actions were exactly the same concerning the selection, production, and approval of the play as in years past.

There is no question that school administrators have the final say concerning the curriculum, but it is absolutely necessary that they also obey the Constitution. The Supreme Court recognizes that the Constitution, specifically the First Amendment, holds that teachers do not shed their constitutional rights to freedom of speech at the school doors. Since Boring was in complete compliance with the school's policies and requirements, it was against her Constitutional rights to discipline her because the play exhibited an unpopular point of view. Boring's argument, then, is that since the principal passed on the play, it has no right to discipline her for its use in the curriculum.

The best means of evaluating this case is based on the Hazelwood case. Hazelwood held that school administrators could manipulate the curriculum as long as they have a legitimate, pedagogical concern. The majority dismisses Hazelwood because they say that it only directly addresses student speech. What they are missing is that it also discusses protection due to curricular speech and the majority believes that it is the curricular nature of Boring's speech, which deprives it of all First Amendment protection.

The majority's use of Kirkland to evaluate the case is quite inappropriate. In Kirkland, the teacher refused to follow established school rules and such an action relegated the issue to that of an ordinary employment dispute. Boring complied with the school rules but was still disciplined which invokes her Constitutional rights.

The majority uses Searcey to explain why the school did not submit a reason for the action taken against Boring. Once again, the majority is misinterpreting the decision of another court. In Searcey, curricular programs by nature have pedagogical purposes, but the Searcey court upheld a judgment against a school board because they provided no evidence to support their actions.

The most important case that the majority uses to defend their decision is Connick. As far as this case is concerned though, Connick does not help determine whether this speech is entitled to Constitutional protection because of the uniqueness of a teacher's in-class speech. A teacher assumes a position of extraordinary public trust and confidence such that her speech is not ordinary employee workplace speech or common public debate.

However if Connick does apply, Boring's play falls within the Supreme Court's definition of public concern, which includes speech relating to any matter of political, social, or other concern to the community. Connick does not hold that an employee loses all First Amendment rights when speaking as an employee on a matter of public concern. Since Boring alleges that she was disciplined for the selection and production of the play, it is not an employment dispute, but a challenge to restriction on classroom speech that involves matters of public concern. The other portion of the Connick balancing test has to do with disruption of the workplace and since there has been no assertion by the school concerning such a disruption, Boring's speech should be protected.

In order to conclude this summary of the dissent, it is appropriate to quote Judge Motz' final, thought-provoking statement. "By allowing school administrators to constitutionally discipline a teacher for in-class speech without demonstrating some legitimate, pedagogical concern, the majority extinguishes First Amendment rights in an area where the Supreme Court has directed they should be brought "vividly into operation."