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Selection of Play Is Curriculum Decision, Appeals Court Rules

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A teacher's selection of a controversial play for students is not protected speech under the First Amendment, a divided federal appeals court has ruled.

The full U.S. Court of Appeals for the 4th Circuit ruled 7-6 this month that Buncombe County, N.C., district officials did not violate the teacher's free speech rights under the U.S. Constitution by disciplining her in connection with the selection of the play, "Independence," for a student competition.

Margaret Boring, a teacher at Owen High School in Buncombe County in 1991, picked the work for students to perform in the statewide competition. She said in court papers that the play "powerfully depicts the dynamics within a dysfunctional, single-parent family" that includes a lesbian daughter and another pregnant with an illegitimate child.

In keeping with past practice, Ms. Boring told the principal the play's title but did not discuss its themes with him.

The play won several awards in a regional competition. Before the state competition, the principal reviewed the script in response to a parent's complaint and said it could not be performed any further. But after a meeting with parents who supported the play, he allowed the performance with some passages deleted.

At the end of the school year, administrators transferred Ms. Boring to another school, stating that she had failed to follow the district's controversial-materials policy in producing the play.

Ms. Boring appealed the transfer to the school board, which upheld the administrators amid much community debate. She sued the board and district officials in federal court, alleging among other claims that her punishment was retaliation for the expression of unpopular views and thus violated her First Amendment right of free speech.

A federal district judge threw out the suit, but a panel of the 4th Circuit court reinstated it last year. The full appeals court, based in Richmond, Va., vacated the panel's decision and reheard the case.

In a Feb. 13 ruling in Boring v. Buncombe County Board of Education, the majority held that the teacher's selection of a play is a curriculum decision and thus is subject to regulation by administrators and the school board.

"It is plain that the play was curricular" because it was supervised by a faculty member, was performed in an interscholastic competition, and was part of a theater program designed to impart skills to students, the court said.

The majority found that the teacher's dispute was an ordinary employment matter deserving no First Amendment protection.

In dissent, U.S. Circuit Judge Clyde H. Hamilton said the principal and the board "targeted Margaret Boring as a scapegoat and used her to shield them from the 'heat' of the negative outcry."

In a separate dissent, U.S. Circuit Judge Diana Gribbon Motz said Ms. Boring had followed proper procedures by informing the principal of the play's title in advance and by agreeing to his orders to delete portions of the play. Judge Motz said she would require the school board to prove it had "legitimate pedagogical concerns" for its disciplinary action.

By ruling that no such requirement exists, the majority "extinguished First Amendment rights in an arena where the [U.S.] Supreme Court has directed they should be brought vividly into operation," Judge Motz said.

Jeremiah A. Collins, a lawyer for Ms. Boring, said an appeal to the Supreme Court was being considered.

Is a parent's letter to a teacher a confidential document under the federal student-privacy law? A federal judge has ruled that it could be, and allowed a civil rights lawsuit against a Louisiana district to proceed. The case went to trial this month.

The case concerns a letter that Debra Warner wrote to her son Scott's 7th grade teacher in 1992 saying she did not want him exposed to "propaganda" about the Holocaust. The class at Chalmette (La.) Middle School was planning a field trip to the U.S. Holocaust Memorial Museum in Washington.

Her letter went on to say she believed study guides, field trips, and movies related to the Holocaust were meant to "stifle criticism of Israel for treatment of non-Jews living under their occupation."

The teacher, Sharon Zeller, showed the letter to several colleagues.

Ms. Warner in 1995 ran for a seat on the governing council of St. Bernard Parish and reached a runoff with the incumbent. One of Ms. Zeller's colleagues recalled the Holocaust letter and alerted The Times-Picayune newspaper in New Orleans. The paper obtained the letter from Ms. Zeller and published a story about it. (The paper also reported about Ms. Warner's alleged ties to white-supremacy groups.)

Ms. Warner lost the runoff election. She filed a federal lawsuit against the St. Bernard Parish school board, the teacher, and administrators, arguing that the release of the letter violated the federal Family and Educational Rights and Privacy Act. The lawsuit reportedly seeks $1.4 million in damages.

In a Feb. 6 ruling in the case, U.S. District Judge Henry A. Mentz Jr. rejected motions for summary judgment. He said it was a factual matter for a jury to decide whether the letter constituted an "education record" under the privacy act. "The letter, arguably, is directly related to Scott in that it addresses subject matter his mother wished to be excluded from his education," Judge Mentz wrote.

"Just because Ms. Warner had previously expressed her views on the Holocaust to the media did not necessarily mean she waived any right of confidentiality, " the judge said.

--MARK WALSH mwalsh@epe.org

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