Boring v. Buncombe County Bd. of Educ.

• Decision Date: 13 February 1998
• Docket Number: No. 95-2593,95-2593
• Citation: 136 F.3d 364
• Parties: 124 Ed. Law Rep. 56, 13 IER Cases 1189 Margaret BORING, Plaintiff-Appellant, v. The BUNCOMBE COUNTY BOARD OF EDUCATION; Charles Johnson, Chairman, Michael Anders; Terry Roberson; Bruce Goforth; Bill Williams; Grace Brazil; Wendell Begley; Dr. J. Frank Yeager, Superintendent; Fred Ivey, Principal, each in his/her individual and official capacity, Defendants-Appellees, National School Boards Association; North Carolina School Boards Association; Virginia School Boards Association Council Of School Attorneys, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 364

136 F.3d 364

124 Ed. Law Rep. 56, 13 IER Cases 1189

Margaret BORING, Plaintiff-Appellant, v. The BUNCOMBE COUNTY BOARD OF EDUCATION; Charles Johnson Chairman, Michael Anders; Terry Roberson; Bruce Goforth Bill Williams; Grace Brazil; Wendell Begley; Dr. J. Frank Yeager, Superintendent; Fred Ivey, Principal, each in his/her individual and official capacity, Defendants-Appellees National School Boards Association; North Carolina School Boards Association; Virginia School Boards Association Council Of School Attorneys Amici Curiae.

No. 95-2593.

United States Court of Appeals, Fourth Circuit.

Argued March 4, 1997.

Decided Feb. 13, 1998.

ARGUED: Jeremiah Andrew Collins, Bredhoff & Kaiser, P.L.L.C., Washington, DC, for Appellant. Jim D. Cooley, Womble, Carlyle, Sandridge & Rice, P.L.L.C., Charlotte, NC, for Appellees. ON BRIEF: Leon Dayan, Bredhoff & Kaiser, P.L.L.C., Washington, DC; S. Luke Largess, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., Charlotte, NC, for Appellant. W. Clark Goodman, Womble, Carlyle, Sandridge & Rice, P.L.L.C., Charlotte, North Carolina, for Appellees. August W. Steinhilber, NSBA General Counsel, Gwendolyn H. Gregory, Deputy General Counsel, National School Boards Association, Alexandria, VA, for Amicus Curiae National School Boards Association. Michael Crowell, Tharrington Smith, L.L.P., Raleigh, NC; Ann W. McColl, Legal Counsel, North Carolina School Boards Association, Raleigh, NC, for Amicus Curiae North Carolina School Boards Association. J.T. Tokarz, Jonathan A. Stanley, Richmond, VA, for Amicus Curiae VSBA Council.

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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. The 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 plaintiff's 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 plaintiff's 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 plaintiff's 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...