98 F.3d 1474 (4th Cir. 1996), 95-2593, Boring v. Buncombe County Bd. of Educ.

Docket Nº:95-2593.
Citation:98 F.3d 1474
Party Name: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.
Case Date:October 31, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 1474

98 F.3d 1474 (4th Cir. 1996)

Margaret BORING, Plaintiff-Appellant,



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.

No. 95-2593.

United States Court of Appeals, Fourth Circuit

October 31, 1996

Argued May 7, 1996.

Opinion Vacated On Dec. 3, 1996.

Page 1475

ARGUED: Leon Dayan, Bredhoff & Kaiser, Washington, D.C., for Appellant. Jim D. Cooley, Womble, Carlyle, Sandridge & Rice, P.L.L.C., Charlotte, North Carolina, for Appellees. ON BRIEF: Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C.; S. Luke Largess, Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., Charlotte, North Carolina, for Appellant. W. Clark Goodman, Womble, Carlyle, Sandridge & Rice, P.L.L.C., Charlotte, North Carolina, for Appellees.

Before WIDENER, MURNAGHAN and MOTZ, Circuit Judges.

Reversed and remanded by published opinion. Judge MOTZ wrote the majority opinion, in which Judge MURNAGHAN joined. Judge WIDENER wrote a dissenting opinion.



In this case, a high school drama teacher appeals the dismissal of her complaint for failure to state a claim. The district court determined from the face of the teacher's complaint that the First Amendment did not protect her conduct in selecting, producing, and directing a play that her drama students performed. Although the First Amendment affords a teacher only limited refuge in this context, we conclude that it does not leave a teacher so completely without protection that her complaint failed to state a claim. Accordingly, we reverse and remand for further proceedings.

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Because this case was dismissed for failure to state a claim, we must accept the following facts, as alleged in the plaintiff's complaint, as true. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Advanced Health-Care Servs., Inc. v. Radford Community Hosp., 910 F.2d 139, 143 (4th Cir.1990).

During the 1991-92 school year, Margaret Boring was employed as a teacher of English and Drama at the Charles D. Owen High School in Buncombe County, North Carolina. The County had employed Boring as a teacher since 1979 and, in that time, she had "built a national reputation for excellence in teaching drama and directing and producing theater." Plays she produced won numerous awards and many of her students received theater-related scholarships to college, including $260,000 in awards to 1992 graduates.

In the fall of 1991, Boring chose "Independence" as the play for four student-actresses in her advanced acting class to perform. "Independence" is a drama that "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." The students planned to perform the play, under Boring's direction, in a state competition. After selecting the play, Boring notified the school principal, as she did every year, of her choice. The principal, Fred Ivey, did not comment or react.

Before rehearsals began, Boring sent the four student-actresses home with scripts to discuss the play with their parents. None of their parents complained, then or later, about the content of the play. The students then performed "Independence" in a regional competition, in which the play won seventeen of twenty-one possible awards.

After the regional competition, but before the state finals, controversy erupted. A student-actress in "Independence" spoke enthusiastically about the play during an English class, taught by Donna Wyles. In response to complaints about the tedium of reading plays, the student remarked that plays were best appreciated when performed, rather than read, and suggested that the English class view a scene from "Independence." Wyles approached Boring and asked if the drama students could perform a scene for Wyles' class. Boring agreed, but asked Wyles to ensure that her students obtained permission slips from their parents before the performance. Wyles assented to Boring's request.

The drama students then performed a scene from "Independence" in the English class. Afterwards, a student in the class, who apparently had not obtained his parents' permission to see the performance, described the scene to a parent. The parent complained to Ivey, who asked to see a copy of the script. Upon reading the script, Ivey informed Boring and the student-actresses that they would not be permitted to perform the play in the state finals.

Boring asked Ivey and County School Superintendent Dr. J. Frank Yeager to watch a performance of the play before forbidding its entry in the state finals. They declined, refusing even to permit the students to use the school's theater to perform the play for the students' parents. After the play was performed instead in a parent's home, the parents pleaded with Ivey to reconsider his decision. Ivey relented but insisted that certain scenes be deleted. "Independence" then won second place in the state finals.

On June 2, 1992, Boring received her performance evaluation for the year; she was rated "superior" and "well above standard" in all function areas, including "Interacting in the Educational Environment" and "Performing Non-Instructional Duties." Nevertheless, ten days later, on June 12, Principal Ivey requested Boring's transfer from Owen High School. Superintendent Yeager agreed and approved Boring's transfer to a middle school where she was assigned to teach introductory drama. Boring appealed her transfer to the Board of Education of Buncombe County. After a hearing, the Board denied her appeal and upheld the transfer.

Boring initially filed suit in state court, alleging that the Board members, Ivey, and Yeager, each in their individual and official capacities, (collectively, "the defendants"), violated several of her rights under the state

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and federal constitutions. Boring asserted that the defendants transferred her "in bad faith and with malice toward [her] over the ideas expressed in the play" and so violated her right to freedom of expression. Boring alleged that the transfer caused her "emotional distress, personal and professional humiliation, ... bludgeoned her reputation as an educator, and ... caused her to lose professional opportunities."

Defendants removed the case to federal court and, before filing an answer, moved to dismiss the complaint for failure to state a claim. A magistrate judge agreed with the defendants and recommended dismissal. The district court accepted the magistrate judge's recommendation and dismissed all of Boring's claims.

Boring only appeals the dismissal of her First Amendment claim, which the district court rejected for two reasons. First, the court held that Boring's selection of a play to produce and direct did not constitute a form of "expression" or "speech" that the First Amendment protected. Second, the court ruled that, even if selecting "Independence" was protectable "speech," the school authorities "had a legitimate interest in curbing such speech," and therefore Boring's selection fell outside any First Amendment protection.

We review de novo dismissals for failure to state a claim. Martin Marietta Corp. v. International Tel. Sat. Org., 991 F.2d 94, 97 (4th Cir.1992). Only if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" will we affirm such a dismissal. Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).


We initially address the two grounds on which the district court based its decision to dismiss Boring's complaint.


First, the district court agreed with the magistrate judge that Boring's complaint did not state a cause of action because she had not alleged that the defendants sanctioned her for ideas she expressed, but rather for ideas the play expressed. The court thus held that Boring's mere "implicit approval" of the ideas in the play "was not expressive conduct entitled to constitutional protection."

In reaching its conclusion, the district court relied primarily on Judge Milburn's concurring opinion in Fowler v. Board of Education, 819 F.2d 657 (6th Cir.) (Milburn, J., concurring), cert. denied, 484 U.S. 986, 108 S.Ct. 502, 98 L.Ed.2d 501 (1987). Of the three opinions the Sixth Circuit panel issued in Fowler, two concluded that the conduct at issue in the case--a teacher's presentation of a film to her class--constituted protectable "expression." Fowler, 819 F.2d at 667 (Peck, J., concurring); 819 F.2d at 669 (Merritt, J., dissenting). Judge Milburn reached a different conclusion. After analyzing the film presentation under legal principles applicable to conduct not "inherently expressive," he found the teacher's conduct unprotected. Id. at 662-64. Largely because the teacher was apparently unaware of the film's content, Judge Milburn concluded that her failure to establish that she intended to convey a particularized message to her class deprived her conduct of First Amendment protection. Id. at 663. Judge Milburn's rationale appears inapposite here because nothing in this record suggests that Boring was unaware of the play's content.

Moreover, and more importantly, we disagree with Judge Milburn's analysis in Fowler. The legal principles applicable to conduct not "inherently expressive" simply do not apply to a teacher's film presentation or Boring's conduct in selecting, directing, and producing a...

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