Court rules Hazelwood applies to teachers but offers some limited speech protections

Mixed news for teachers' freedom of expression in the classroom

NORTH CAROLINA — A federal appeals court in North Carolina joined a growing number of jurisdictions when it ruled last October that the U.S. Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier applied to the classroom speech of teachers as well as students.

However, in its ruling it also said that a high school drama teacher with 13 years experience, an award-filled history and what the court noted as a “national reputation for excellence in teaching drama” could proceed with a First Amendment claim against school officials after they transferred her to a nearby middle school to teach an introductory drama class.

The case, which has been appealed, would seem to offer both some good news and bad news to student media advisers that find themselves at odds with school administrators on content-related issues.

In the case, Boring v. Buncombe Country Board of Education, 98 F.3d 1474 (4th Cir. 1996), Margaret Boring claimed that her former principal at Charles D. Owen High School in Buncombe County, Fred Ivey, requested her transfer after she selected and directed a play that a parent at the school found objectionable.

The play, called “Independence,” was described in court documents as a drama “that powerfully depicts the dynamics within a dysfunctional single-parent family — a divorced mother, and three daughters; one lesbian, another pregnant with an illegitimate child.”

According to the court decision, before rehearsals began, Boring notified the school principal of her selection. She also sent the student-actresses home with scripts to discuss the play with their parents. Neither the principal nor the parents objected. The students then performed “Independence” in regional competition where it won 17 of 21 possible awards.

After the regional competition but before the state finals, an English teacher at the high school suggested that the troupe perform a scene from the play in her class. Boring agreed but only after the teacher promised to obtain permission slips from the parents of those in the class.

After the performance, the parents of one of those in the class, who said they had not been contacted, complained to Principal Ivey. Ivey read the script and told Boring that her students would not be permitted to perform the play in the state finals. After much persuasion, Ivey said that the play could be performed but only if certain scenes were deleted.

“Independence” then won second place in the state finals.

At the end of the school year, the principal requested and the school system approved Boring’s transfer to the middle school. Boring sued, claiming a violation of her state and federal constitutional rights.

The federal district court dismissed Boring’s case without a trial, agreeing with the school system that she had failed to state a recognizable claim.

In dismissing her First Amendment claim, the court ruled that Boring’s selection of the play did not constitute “speech” subject to protection. Further, even if such activity were speech, the court said, school authorities had a “legitimate interest” in curbing it.

The court based its decision on the U.S. Supreme Court’s 1988 Hazelwood decision, which upheld the right of school officials to censor a school-sponsored student newspaper where they had a legitimate educational reason for doing so.

The court of appeals disagreed with the lower court. First, it ruled that Boring’s selection, direction and presentation of “Independence” was “speech.”

“Films, plays, and even ‘crude street skits,’ constitute inherently expressive communicative vehicles and, as such, warrant First Amendment protection even if the speaker cannot establish an intent to convey a particularized message,” the court wrote.

Second, the court found that because no evidence had been introduced on the issue, the lower court had no basis for determining whether the school had a legitimate educational reason for its restrictions.

Such a determination, the appellate court said, could only be made after the presentation of evidence on the issue and it ordered that the district court allow the case to go to trial.

The outcome is both bad news and good news for teachers, who have argued that their academic freedom to teach could be seriously jeopardized if their classroom speech were subject to administrative censorship under the Hazelwood standard.

While the Boring court accepted the school’s argument that Hazelwood was the proper standard for analyzing restrictions on teacher speech in secondary school classes, it refused to defer completely to the school’s judgment that the standard had actually been met in Boring’s case.

“There remains a limited area in which a teacher’s in-class speech, even in secondary schools, retains protection,” the court wrote.

Even the Hazelwood standard, the court concluded, has some teeth in protecting free speech rights.

Arguing that the appellate court had erred in granting too much protection to Boring, the school system asked that the case be reheard by a full panel of judges in the Fourth Circuit, which the court agreed to.

Arguments before the en banc panel of judges took place March 4. A decision is expected within a few months.

reports, Spring 1997