Outcome of drama teacher’s case disappoints free-speech advocates

Tuesday, October 27, 1998

The recent Supreme Court decision not to hear the appeal of a North Carolina drama teacher disappointed free-speech advocates who hoped the high court would overturn what they called “one of the worst” First Amendment decisions in years.

Earlier this month, the nation's highest court let stand a 4th U.S. Circuit Court of Appeals ruling handed down last February that says public school teachers have no free-speech protection against punishment over the curriculum materials they select.

“It's a terrible decision,” said Mark Goodman, executive director of the Student Press Law Center. “The appeals court's decision is devastating to the notion that secondary school teachers are entitled to protection from arbitrary censorship.

“It's one of the worst decisions on the First Amendment and schools in the last 13 years,” Goodman said.

But groups representing school administrators and school boards, however, cited both the appeals court ruling and the Supreme Court's decision not to hear the case as evidence that the ultimate responsibility of a school system's course of study rests with school officials not teachers.

The Supreme Court earlier this month refused to hear the appeal from North Carolina drama teacher Margaret Boring, who was punished by school officials in Buncombe County for letting her students stage a controversial play.

Boring said that her free-speech rights were violated, but the appeals court ruled 7-6 that teachers had no right to determine school curriculum.

“It's played as a free-speech case, but I don't see it as a free speech,” said Julie Underwood, general counsel for the National School Board Association. “It's a question of responsibility. The school board has the responsibility to set the curriculum for the students. They have to have some way to make sure that the curriculum is delivered.”

Although the Supreme Court offered no opinion on the case, the lower court agreed that the issue was responsibility not free speech.

“Someone must fix the curriculum of any school, public or private,” the appeals court ruled last February. “In the case of a public school … it is far better public policy that the makeup of a curriculum be entrusted to the local school authorities.”

The Supreme Court's decision to allow the appeals court's ruling to stand makes the 4th Circuit's decision binding in North Carolina, South Carolina, Virginia and West Virginia. While the decision sets no national precedent, some say it will have a chilling effect on teachers nationwide.

Specifically, Goodman said he feared the lower court's decision because it cited the 1988 Supreme Court decision in Hazlewood School District v. Kuhlmeier. The high court found that high school officials could suppress student publications if they had a compelling educational reason.

“The fact they used the Hazelwood decision shows how devastating it is,” Goodman said. “We're going to see more and more advisers to student media and other teachers being threatened with punishment.”

Some say the decision ultimately will keep teachers from exploring new and more challenging courses of study.

Boring had taught high school drama for nearly 11 years when she selected the Lee Blessing play Independence for four students in her advanced drama class. The play focuses on a single mother and her three daughters, one of whom is a lesbian and another is pregnant and unmarried.

Although a school policy on “controversial materials” didn't require advance parental approval to stage such a play, Boring received approval from the parents of the four students and from the school's principal, her attorneys claimed.

After the play won awards in a regional competition, the students staged the play for an English class at the high school. A parent then complained, and the principal arranged for Boring to be transferred to a junior high school.

After her appeal of the transfer was denied, Boring sued the school board and school officials. A federal trial judge threw out the lawsuit, but a federal appeals court panel voted 2-1 to reinstate it. The full 4th Circuit then voted 7-6 to reverse the panel decision and kill the case once again.

“She did everything she could, yet she found herself in a situation where she was punished,” Goodman said. “I think what this leaves me with is why would any creative, talented and sane person want to be a secondary school teacher today?”

But Underwood said the facts of the case — including whether Boring secured proper parental approval — are disputed. That aside, she said, curriculum decisions have to rest with the school board.

Gary Marx, senior consultant for the American Association of School Administrators, agreed, noting that with Hazelwood, the courts recognized the duties of school administrators may extend to being the producer of school plays or publishers of school newspapers.

“While school administrators and officials have the right to play the role of publishers and producers, we are confident that they will make decisions sparingly,” Marx said.