N.C. court says educator’s First Amendment rights not violated

Monday, February 16, 1998

RICHMOND, Va. (AP) – A closely divided federal appeals court ruled Feb. 13 that Buncombe County, N.C., school officials did not violate a high school drama teacher’s First Amendment rights by transferring her to a junior high after controversy over a school play.

In a 7-6 decision, the 4th U.S. Circuit Court of Appeals reversed an earlier decision by its own three-judge panel and upheld the ruling of U.S. district court Judge Lacy H. Thornburg of Asheville, N.C.

The dispute centered on Margaret Boring’s selection of the play Independence to be performed at a state competition.

Court records described the play as 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.”

Boring’s advanced drama students at Charles D. Owen High School were allowed to perform the play in the state competition, but only after some scenes were eliminated at the insistence of principal Frank Ivey. The play won second place.

The teacher later was assigned to teach introductory drama at a junior high, even though she had received a superior job evaluation. She sued in Boring v. Buncombe Board of Education Education, claiming she was being punished for exercising her First Amendment rights.

But Judge H. Emery Widener Jr. said in the majority opinion that the play was part of the school curriculum, which is governed by school officials—not individual teachers.

“Plaintiff’s selection of the play Independence, and the editing of the play by the principal … does not present a matter of public concern and is nothing more than an ordinary employment dispute,” Widener wrote.

In a dissenting opinion, Judge Diana Motz agreed that school administrators have final authority over curriculum decisions but added, “Like other state officials, they must obey the Constitution.”

Motz quoted the 1960 U.S. Supreme Court opinion Shelton v. Tucker: “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”

In the Shelton case, the Supreme Court ruled that public school officials violated the First Amendment rights of teachers by requiring them to list all organizations they had been part of or had supported.

Even though the Shelton case was factually different, Motz found the principle of protecting free speech in schools applicable, writing: “But the words apply with equal force here. Rather than ‘vigilant[ly] protect[ing] … constitutional freedoms … in the community of American schools,’ the majority eliminates all constitutional protection for the in-class speech of teachers.”

— FAC staff contributed to this report.