Boring v. Buncombe Bd. of Educ., 136 F.3d 364 (4th Cir. 1998)
A high school drama teacher chose the play Independence for her students to perform at a competition. The play depicts a dysfunctional family that includes a lesbian daughter and a daughter with an illegitimate child. The students captured top honors at a regional competition. The principal learned of the script, objected to the play and eventually only let the students perform it with certain scenes deleted. The principal then transferred the teacher to a new school because she allegedly had failed to follow the school's "controversial materials" policy. That policy gives parents some control over what material their children are exposed to at school. The teacher alleged that the "controversial materials" policy did not cover dramatic presentations. The teacher sued on First Amendment grounds, alleging that she was retaliated against in her transfer because of the content of the play.
Whether a public school teacher has a First Amendment right to participate in the choice of the school curriculum.
By a 7-6 vote, the Fourth Circuit held that the plaintiff's selection of the play as part of the school curriculum was not protected expression under the First Amendment.
The majority determined that the teacher's First Amendment claim failed for two reasons: First, the court analyzed the case as a standard public employee free-speech case. In public employee free-speech cases, plaintiffs must show that their speech was a matter of public importance or public concern. The majority determined that the teacher’s selection of the play did "not present a matter of public concern and is nothing more than an ordinary employment dispute."
The majority also said that the school had a legitimate educational reason for editing the play. "While we are of the 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 the opinion" that school officials had a legitimate educational reason for objecting to her selection of the play.
"Since plaintiff’s 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." (Judge Hiram Widener)
"School administrators must and do have final authority over curriculum decisions. But that authority is not wholly unfettered." (Judge Diana Motz)
Monday, August 3, 2015 | 10:06:48