***

Plaintiff appeals only the dismissal of her federal First Amendment claim. *** 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.

***

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)

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)

 
3: all planned school activities including besides courses of study, organized play, athletics, dramatics, clubs, and homeroom program.  [*368] 

 The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences [footnote omitted].

 
We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

***
In a case on facts so near to those in the case at hand as to be indistinguishable, the Fifth Circuit came to the conclusion we have just recited in Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir. 1989), cert. denied, 496 U.S. 926, 110 S. Ct. 2620, 110 L. Ed. 2d 641 (1990). Kirkland was a case in which the employment contract of a high school history teacher was not renewed. He alleged the nonrenewal was a consequence of, and in retaliation for, his use of an unapproved reading list in his world history class. The high school had provided the teacher with a supplemental  [**13]  reading list for his history class along with a copy of the guidelines used to develop and amend that list. He was aware of the guidelines and understood that if he was dissatisfied, a separate body of reading material could be used in his class if he obtained administrative approval. The teacher, however, used his own substitute list and declined to procure the approval of the school authorities for his substitute list. The authorities at his high school then recommended that his contract not be renewed at the end of the next academic year, which was affirmed by the board of trustees, much like Margaret Boring's transfer was affirmed by the school board in this case after a recommendation by the administrative authorities.

The court held that to establish his constitutional claim, Kirkland must have shown that his supplemental reading list was constitutionally protected speech; not different from Mrs. Boring's selection of the play Independence in this case. It went on to hold that under Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), the question of whether a public employee's speech is constitutionally protected depends upon the public or private  [**14]  nature of such speech. It decided that the selection of the reading list by the teacher was not a matter of public concern and stated that:

Although, the concept of academic freedom has been recognized in our jurisprudence, the doctrine has never conferred upon teachers the control of public school curricula. [footnote omitted]

In summary, we conclude that Kirkland's world history reading list does not present a matter of public concern and that this case presents nothing more than an ordinary employment dispute. Accordingly, Kirkland's conduct in disregarding Northside's administrative process does not constitute protected speech . . . .

For a young person cannot judge what is allegorical and what is literal; anything that he receives into his mind at that age is likely to become indelible and unalterable; and therefore it is most important that the tales which the young first hear should be models of virtuous thoughts.

The magistrate, who in favor of freedom thinks himself obliged to suffer all sorts of publications, is under a stricter duty than any other well to consider what sort of writers he shall authorize, and shall recommend by the strongest of all sanctions, that is, by public honors and rewards. He ought to be cautious how he recommends authors of mixed or ambiguous morality. He ought to be fearful of putting into the hands of youth writers indulgent to the peculiarities of their own complexion, lest they should teach the humors  [**18]  of the professor, rather then the principles of the science.

It is an atmosphere in which there prevail "the four essential freedoms" of a university--to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.

***

WILKINSON, Chief Judge, concurring:

Traditionally, indeed for most of our history, education has been largely a matter of state and local concern. The dissents, however, approach education as a federal judicial enterprise. The dissenters seize upon one loose, slippery, litigious phrase-- "legitimate pedagogical concern" -- and consign it to the mercies of the federal courts. They provide not one iota of guidance to local school administrators on the interpretation of this tantalizing formulation, nor could they. What is "legitimately pedagogical" will inevitably mean one thing to one judge or jury and something else to another.

This is precisely the process by which [federal civil rights legislation] becomes an instrument of disenfranchisement. In this case, that provision would remove from students, teachers, parents, and school boards the right to direct their educational curricula through democratic means. The curricular choices of the schools should be presumptively their own --  [*372]  the fact that such choices arouse deep feelings argues strongly for democratic means of reaching them. *
 
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

* The dissents contend that all the intrusiveness occasioned by the term "legitimate pedagogical concern" can be ascribed to the Supreme Court. It is obviously not the Supreme Court's use of the phrase to which I object, but the dissents' aggressive misapplication of it to all curricular decisions.
 
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -  [**22] 

I would affirm the judgment of the district court.

LUTTIG, Circuit Judge, concurring:

I agree fully with the unassailable conclusion of the majority that the First Amendment does not require school boards to allow individual teachers in the Nation's elementary and secondary public schools to determine the curriculum for their classrooms consistent with their own personal, political, and other views.

***

Notwithstanding its obvious recognition of the inapplicability of Hazelwood, the dissent would nevertheless import wholesale Hazelwood's test for evaluating restrictions on student speech within curricular activities into the entirely different context of teacher speech through the curriculum itself. That is, not only does the dissent deny, through simple omission of the relevant portions of text from the Court's opinion, that Hazelwood was concerned only with student speech; it fails to recognize the elementary difference between teacher in-class speech which is curricular, and teacher in-class speech which is noncurricular, because it assumes that every word uttered by a teacher in a classroom is curriculum. In the latter context of teacher in-class noncurricular speech, the teacher assuredly enjoys some First Amendment protection. In the former context of teacher in-class curricular speech, the teacher equally assuredly does not.

Of course, we are presented in this case not with student speech within a curricular activity (such as in Hazelwood), but rather, with teacher or employee speech literally through the curriculum itself.  [**27]  The differences are plain -- the ultimate question for our resolution being whether a teacher has a constitutional right to define, at least in part, the school's curriculum, over the informed judgments of both school boards and parents. As noted, mistakenly applying Hazelwood in the first instance, and then, in its alternative reasoning, mistakenly assuming that every word spoken in the classroom by a teacher is a matter of public concern within the meaning of Connick and Pickering, the dissent would hold that every teacher has such a right. Today, however, the court properly concludes that she does not. Of course, were it otherwise -- that is, were every public school teacher in America to have the constitutional right to design (even in part) the content of his or her individual classes, as the dissent would have it -- the Nation's school boards would be without even the most basic authority to implement a uniform curriculum and schools would become mere instruments for the advancement of the individual and collective social agendas of their teachers.

Rhetorically, the dissent attempts to minimize the radicalization of the educational process that would follow upon its  [**28]  proposed holding, by assuring that school officials "must and [would] have final authority over curriculum decisions," and that all that would be required is the mere articulation by the school board of any "legitimate pedagogical concern." Even if these observations as to the dissent's proposed holding were true, the requirement that school systems across the country make their curriculum decisions in anticipation of litigation, and then engage in the time-consuming processes of discovery, pretrial litigation, and trial in federal court to defend as "legitimately pedagogical" their individual curriculum decisions, would itself represent a crushing burden, not to mention a surrender to unelected federal judges of the "final authority over curriculum decisions" that is properly that of school boards and parents.

But one should be under no illusions that the particular requirement of "legitimate pedagogy" that the dissent has in mind could ever be so easily satisfied or that, in reality, the dissent contemplates final decisionmaking authority for curriculum resting with the Nation's schoolboards. The indisputable subtext of the dissent, which could hardly go unnoticed, is that "legitimate" pedagogy  [**29]  will  [*374]  be not what the parents and schoolboards decide it should but, rather, what the judges say it will be. If any confirmation of this is necessary, one need look no further than to Judge Hamilton's separate opinion, in which he has already concluded, without even so much as an allegation to this effect by the plaintiff, that the defendants, "all for the sole purpose of shielding the principal and the Board from the wrath of the public outcry," "targeted Margaret Boring as a scapegoat and used her to shield them from the 'heat' of the negative outcry resulting from the performance of Independence." Post at 29-30 (Hamilton, J., dissenting).

Judge Wilkins and Judge Williams join in this concurrence.

HAMILTON, Circuit Judge, dissenting:

I join in Judge Motz's persuasive dissenting opinion. I write separately to emphasize several points. First, the facts as alleged in the complaint suggest strongly that this case is far from an "ordinary employment dispute," i.e., a case involving only speech of a private concern, as the majority dismissively states. Ante at 10. Instead, as gleaned from a fair reading of the complaint, this is a case  [**30]  about a school principal, Fred Ivey, and a county school board, the Buncombe County Board of Education (the Board), who targeted Margaret Boring as a scapegoat and used her to shield them from the "heat" of the negative outcry resulting from the performance of Independence. This is also a case about a dedicated teacher who, contrary to the implication of the majority and concurring opinions, in no way violated any aspect of an approved curriculum; who followed every previously required standard set forth for the selection and approval of the school production; who, when requested to do so, redacted certain portions of the production and only permitted its performance after that performance had been explicitly approved by her principal, Mr. Ivey; yet, who nevertheless lost her position as a result of the production, all for the sole purpose of shielding the principal and the Board from the wrath of the public outcry.  *** Because this dispute originated in, and was entirely the result of, public debate, I believe that the Board, as a public employer that allegedly acted in response to that public debate, should be required to articulate some legitimate, pedagogical concern for restricting Boring's speech. This burden is hardly onerous, and it is the least we can require of public officials charged with making curriculum decisions.

Second, it should not be overlooked that this case presents one simple question: Can the Board censor Boring's speech without proffering any legitimate pedagogical concern justifying the restriction? Judge Motz's dissent persuasively explains why the answer to this simple question is no. In all likelihood, if remanded, this case would be resolved in favor of the Board at the summary judgment stage, as several pedagogical concerns probably justified the Board's action. At this early stage, ... however, we have no basis for determining whether the Board's restriction reasonably related to legitimate pedagogical concerns.  [**32]  For this reason, the judgment of the district court should be reversed and the matter remanded for further proceedings.

A final note concerning the concurring opinions of Chief Judge Wilkinson and Judge Luttig. These opinions attack the dissenting opinion as consigning to the federal judiciary the responsibility for managing our public schools. Nothing could be further from reality. What these opinions ignore, however, is that any limited intrusion, whatever it may be, is precisely the intrusion required by the Supreme Court's decision in Hazelwood. The Supreme Court established the Hazelwood standard and, in doing so, clearly envisioned some minimal intrusion into public school management insofar as school administrators would be required to articulate a legitimate pedagogical concern for censoring a student's speech. The Supreme Court apparently  [*375]  did not believe this standard to be too ambiguous for district and appellate courts to apply, nor did it apparently believe this standard to place an unjustly onerous burden on school officials. Therefore, even if the parade of horribles feared by the concurrences came to pass, it is a parade of horribles created by a standard articulated  [**33]  by the Supreme Court and one to which we are bound to adhere until the Supreme Court states otherwise.

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

The majority holds that a teacher's speech in selecting, producing, and directing a school play deserves "no First Amendment protection." Ante at 15. I cannot agree and therefore respectfully dissent. In my judgment, the district court erred in dismissing Margaret Boring's complaint for failure to state a claim upon which relief can be granted.

School administrators must and do have final authority over curriculum decisions. But that authority is not wholly unfettered. Like all other state officials, they must obey the Constitution. The Supreme Court has long recognized that the Constitution, specifically the First Amendment, "does not tolerate laws that cast a pall of orthodoxy over the classroom." Keyishian v. Board of Regents, 385 U.S. 589, 603, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967). See also Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969) ("teachers" no less than "students" do not "shed their constitutional rights to freedom of  [**34]  speech or expression at the schoolhouse gate"). Thus, teachers' in-class speech retains some, albeit limited, First Amendment protection, as is explained in detail in the panel opinion in this case. ... To that opinion, I add only a few thoughts.

I.
***
The Board may indeed have "legitimate pedagogical concerns" that are "reasonably related" to its disciplinary  [**37]  decision. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, 98 L. Ed. 2d 592, 108 S. Ct. 562 (1988). But, of course, Boring alleges no such concerns and the Board has not yet stated any. Hence, nothing in the record before us, at this early stage in the proceedings, allows us to draw such a conclusion. Prior to today, every court to consider the matter has required that school administrators offer some evidence -- if only an affidavit -- to establish the legitimacy of the pedagogical concerns purportedly related to their actions. See Boring, 98 F.3d at 1479. The majority, however, concludes that even this slight evidentiary showing is unnecessary. n1 The majority maintains that because "pedagogical" is defined as "educational," any and every curriculum decision made by school administrators is "by definition a legitimate pedagogical concern" and thus constitutionally acceptable. Ante at 16. [footnote omitted]
 
The Supreme Court's careful reasoning in Hazelwood, an opinion authored by Justice White and joined by all members of the present Court then sitting (the Chief Justice, and Justices Stevens, O'Connor, and Scalia), offers no support for this astonishing conclusion. n2 Rather, in Hazelwood the Court held that school administrators' curriculum choices did not offend the First Amendment "so long as their actions are reasonably related to legitimate pedagogical concerns." Hazelwood, 484 U.S. at 273 (emphasis added). Indeed, the Court went on to recognize that, on occasion, a particular curriculum decision may have "no valid educational purpose" and that in such an instance "the First Amendment is so directly and sharply implicated as to require judicial intervention." Id. (citation and internal quotation omitted; alteration in original). Thus, the Supreme Court in Hazelwood clearly did not hold, as the majority does here, that each and every curriculum decision is "by definition a legitimate pedagogical concern." Ante at 16 (emphasis added). Instead, the Court meticulously analyzed the speech before it and concluded that the school administrators had  [**39]  demonstrated -- through the testimony of several witnesses -- the legitimacy of their pedagogical concerns and that for this reason "no violation of First Amendment rights occurred." 484 U.S. 260 at 275-76, 108 S. Ct. 562, 98 L. Ed. 2d 592. [footnote omitted]

Nor do the two cases upon which the majority relies, ante at 16, support its holding that each and every curriculum decision of a school administration is "by definition a legitimate pedagogical  [**40]  concern." In neither Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794 (5th Cir. 1989); cert. denied, 496 U.S. 926, 110 L. Ed. 2d 641, 110 S. Ct. 2620 (1990), nor Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989), did the courts hold that the plaintiffs failed to state a claim upon which  [*377]  relief could be granted or that school administrators' decisions were motivated by legitimate pedagogical concerns simply because those decisions concerned the curriculum.

In Kirkland, the Fifth Circuit did conclude that the teacher "suffered no impairment of his First Amendment rights." Kirkland, 890 F.2d 794 at 795. But that teacher, Timothy Kirkland, unlike Boring, admitted that he refused to follow the school's well-established rules. For example, he admitted using a "nonapproved reading list." Kirkland, 890 F.2d at 795 (emphasis added). Boring, by contrast, alleges that her principal initially acquiesced in her choice and production of Independence. Moreover, Kirkland did not concede, as Boring does, that the school authorities were entitled to the broad discretion vested in them under the Hazelwood standard. Rather, Kirkland contended that "his control of the world history class curriculum [was]  [**41]  unlimited." Kirkland, 890 F.2d at 801 (emphasis added). The Kirkland court properly rejected this argument. Id. But the Fifth Circuit's reasoning in Kirkland does not foreclose Boring's quite different and far more modest contention that although administrators may discipline a teacher even when the teacher does follow the school's rules, they may do so only "so long as [administrators'] actions are reasonably related to legitimate pedagogical concerns." Hazelwood, 484 U.S. at 273. Actually, rather than foreclosing this reasoning, the Kirkland court seemed to embrace it: "Our decision should not be misconstrued . . . to suggest that public school teachers foster free debate in their classrooms only at their own risk or that their classrooms must be 'cast with a pall of orthodoxy.'" Kirkland, 890 F.2d at 801-02.

In Searcey, the Eleventh Circuit recognized, as I do, that curricular programs by nature have pedagogical purposes. See 888 F.2d at 1319. But it did not hold, as the majority does here, that each and every curricular decision is "by definition a legitimate pedagogical concern." Ante at 16 (emphasis added). In fact, the Eleventh  [**42]  Circuit's holding stands in stark contrast to that set forth by the majority. The Searcey court upheld a judgment against a school board precisely because the board offered "no evidence" to support its challenged requirement. Searcey, 888 F.2d at 1322 (emphasis added). The court reasoned "we cannot infer the reasonableness of a regulation from a vacant record." Id. (citing Hazelwood, 484 U.S. at 275 & n.8). Moreover, Searcey expressly rejected the school board's argument that even though it failed to offer any evidentiary support, a court must defer to its decision; the court concluded that this would "overstate[ ] the deference a court must pay to School Board decisions." 888 F.2d 1314 at 1321. The majority erroneously relies on Searcey to do precisely what the Searcey court itself would not do -- overstate the deference due school board decisions and infer the reasonableness of such decisions from a vacant record.

The Buncombe County Board of Education may possess legitimate pedagogical concerns reasonably related to its discipline of Boring. But, to date, the Board has not even attempted to state those concerns, let alone offered a scintilla of evidence  [**43]  establishing them. On this record, I do not see how a court can conclude, as the majority does, that "the school administrative authorities had a legitimate pedagogical interest" justifying discipline of Boring and dismissal of her complaint. Ante at 16.

II.

Like the district court, Boring, and the two associations that filed amici briefs on behalf of the School Board (the National School Boards Association and the Virginia School Board Association Council of School Board Attorneys), I believe that the standard articulated in Hazelwood, not that set forth in Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), provides the appropriate test for analyzing the speech at issue in this case. But, contrary to the majority's suggestion, even if Connick were applicable here, it would fail to provide an alternative basis on which to dismiss Boring's complaint.
***
III.

As recognized at the outset of this dissent and in the panel opinion, school administrators  [*380]  must "be permitted to have the final  [**51]  say in setting the appropriate curriculum so that students are not exposed to material that detracts from or impedes the school's pedagogical mission." Boring, 98 F.3d 1474 at 1483. Yet, the First Amendment lives in the classroom as it does elsewhere. Indeed, as the Supreme Court stated several decades ago:

The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher's relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation.