Dramatic License

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Peggie Boring filed suit in late 1993 against the school board, superintendent Frank Yeager, and Owen High principal Fred Ivey.

Events culminated in an 11-hour hearing in early September during which the Buncombe County board of education considered Boring's appeal of the transfer. Superintendent Yeager argued that he had approved the reassignment in part because Boring had violated the district's controversial-materials policy. That policy bowed to the notion that "controversial issues are an inherent part of our democratic tradition," but it also required that "all subjects have to have prior approval of the principal"-approval that Ivey said Boring never sought.

Yeager also characterized the transfer as a response to a second clash that year between Boring and Ivey. Owen High had moved to a new building in the fall, and during preparations for the spring musical, Boring had ordered that plywood be screwed to the auditorium stage's brand-new hardwood maple floor so that sets could be anchored. A couple hundred holes were drilled in the floor, Boring says, none bigger than the tip of a pencil. Ivey, however, claimed there were as many as 900 holes and said that he had specifically told Boring not to secure the plywood with screws or nails.

Yeager testified, "I concluded there was a personality problem between the two. They were not communicating. I also concluded that Mrs. Boring was having a hard time taking constructive criticism and was doing things that were borderline insubordinate, if not insubordinate."

In her testimony, Boring countered that she and Ivey had discussed the plywood floor but that the principal never directed her not to drill holes in the stage floor. She also spelled out what she perceived as the educational benefits of teaching Independence as well as the efforts she had made to ensure that her students and their parents were comfortable with the production.

Boring's colleagues and students, meanwhile, testified to her talent and devotion to her students. Luke Largess, Boring's lawyer, told the board: "You're taking 13 years of professional dedication, national reputation, kids getting scholarships to college through her program . . . and you're going to take her away from that and take all that away from the kids in this school system."

The meeting adjourned well after midnight on September 3. The next evening, the board voted to uphold Boring's transfer. When a flood of phone calls started pouring in, Boring put a message on her answering machine: "The board heard my side for the first time, and I think I made an important statement about the treatment I received. I disagree with what they did, but sometimes the triumph is in the trying."

Peggie Boring filed suit in late 1993 against the school board, superintendent Frank Yeager, and Owen High principal Fred Ivey. The district, she alleged, had violated her First Amendment right to free speech. The explanations offered for her transfer to Valley Middle School had merely been pretext; the reassignment had actually been motivated by the controversial ideas presented in the play. It might even have been designed as retaliation for what some in the community viewed as Independence's promotion of lesbianism and premarital sex.

The district denied Boring's allegations. School officials argued that Boring had been transferred for a host of reasons-the damage to the stage floor chief among them-but not for the content of the play. "Unlike the famous scene in Act II of Hamlet, here the play's not the thing," quipped the attorneys for the board in one brief.

In its motion to dismiss the case, the district flatly rejected Boring's contention that producing and directing a student production constituted speech deserving of First Amendment protections. She was staking a claim to rights that the U.S. Supreme Court has never given teachers, says Walter Currie, an attorney for the district. "I think that the real issue here is that the teacher and her supporters want to establish what has never been established, and that's the concept of academic freedom in the secondary school."

Currie's assertion sounds incredible given the Supreme Court's numerous rulings in the late 1960s that celebrated academic freedom in reverential terms. "Our nation is deeply committed to safeguarding academic freedom.... [and] does not tolerate laws that cast a pall of orthodoxy over the classroom," wrote Justice William Brennan in 1967.

Yet many of the decisions from that era involved universities or colleges, not secondary schools. Since then, the court has drawn a clear distinction between K-12 and postsecondary education. Colleges and universities should be an unrestricted marketplace of ideas, it has said, but local school boards have legitimate reasons to restrict speech in the classroom.

The court "has signaled that the concept of academic freedom is not a relevant concept in the K-12 classroom," contends Naomi Gittins, a staff lawyer for the National School Boards Association.

Some scholars see the Supreme Court's rulings somewhat differently. William Van Alstyne, a Duke University law professor, contends that the court in recent years has defined the chief mission of primary and secondary schools as the transmission of knowledge and cultural values. As a result, it has concluded that local boards can limit classroom speech under the guise of "inculcating" students in the values of the community. At the same time, however, the court has continued to wrap the notion of academic freedom in grand rhetoric.

"It's a kind of schizophrenia we're seeing, and it's inescapably ever-present in the decisions," Van Alstyne argues.

This schizophrenia might explain the often radically different opinions issued in the Boring case so far. In June 1995, a federal district judge sided with Buncombe County school officials and dismissed the suit. But that ruling was overturned 16 months later in a 2-1 vote by a panel of the U.S. Court of Appeals for the 4th Circuit. In her opinion for the majority, Judge Diana Gribbon Motz balanced the numerous rulings touting academic freedom from the 1960s against more recent decisions granting school boards power over classroom speech. This case law "leads us to conclude that the question is not, and never has been, whether teachers have First Amendment rights in the classroom," she wrote in the majority opinion, "but how much school authorities can legitimately restrict those rights."

Motz argued that the court outlined in its 1988 Hazelwood School District vs. Kuhlmeier ruling the standard that K-12 school officials must meet in order to restrict classroom speech. In that case, the justices upheld a principal's decision to cut two articles-one on teen pregnancy and one about the impact of divorce on students-from the student newspaper. In its ruling, the court concluded that such censorship was lawful if school officials proved they had "legitimate pedagogical concerns" about the material. Buncombe County school officials had presented no such rationale, Motz declared.

The district appealed the panel's decision, and the full 4th Circuit Court then took up the case. This time, the ruling went against Boring, by a 7-6 vote. Some of the dissenting judges clearly believed Boring's constitutional rights had been violated. Wrote one: "This is a case about [school officials] 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."

But the majority on the court denied Boring any First Amendment protections. Buncombe County officials, wrote Judge Emory Widener Jr., did not have to show their "pedagogical concerns" for limiting speech, as Motz had argued. The selection of a play for a student-run production was a curriculum decision, and curriculum decisions inherently involve pedagogy.

'Most teachers at the high school level believe they can teach a book or play that mentions homosexuality. Now, they may just figure, 'Why rock the boat? Let's go back to Our Town.''

Leon Dayan,

Moreover, Widener collapsed the particulars of Boring's suit into a single question upon which, he argued, the entire case rested: Who controls curriculum, local school boards or teachers? To grant teachers First Amendment rights in curriculum decisions would be to codify that teachers have power to control the curriculum, he claimed, power that belongs exclusively to local school boards. "The only issue in this case is whether a public school teacher has a First Amendment right to participate in the makeup of the school curriculum through the selection and production of a play," Widener declared. "We hold that she does not."

The 4th Circuit's ruling was handed down in February. A few months later, two other teachers making First Amendment claims lost key decisions. In June, a federal appeals court overturned a jury's $750,000 award to Cissy Lacks, a Missouri teacher who was fired for letting students use profanity in creative writing. And in July, the Colorado Supreme Court upheld the firing of a teacher who had showed the R-rated film 1900 to his high schoolers.

Taken together, the three rulings threaten to gouge the notion of academic freedom, says Michael Simpson, general counsel for the National Education Association. "They're terrible decisions, and the Boring ruling is the worst," Simpson says. Widener's opinion denies teachers even the minimum First Amendment protection for in-class speech, he contends. If upheld, it could give school boards legal cover when they fire teachers to appease constituents upset over district-approved books, classroom materials, or discussions that prove controversial.

School attorneys dismiss such talk as sky-is-falling hyperbole. "This is an isolated incident," says Buncombe County's Walter Currie. "The case will have no effect on teachers in this school system or in any other system."

But Leon Dayan, a lawyer with a Washington, D.C., firm that specializes in First Amendment law and one of Boring's attorneys, contends that the 4th Circuit decision could have a tremendously chilling effect on classroom discussion and curriculum, if only through teachers' self-censorship. "Most teachers at the high school level believe they can teach a book or play that mentions homosexuality," Dayan says. "Now, they may just figure, 'Why rock the boat? Let's go back to Our Town.'"

Last spring, Peggie Boring petitioned the U.S. Supreme Court to hear her case. The court takes up only a tiny fraction of these appeals, but her lawyers believe the far-reaching decision of the 4th Circuit conflicts with other federal circuit court rulings. The justices, they hope, will want to step into the fray and settle things.

Regardless of how the court rules, it's clear the drama that began seven years ago in Black Mountain is drawing to a close. The four girls who performed Independence earned college degrees in the arts, and three of them work in theater professionally. Boring's 23-year-old daughter, who also went through the professional theater track at Owen High, is pursuing an acting career and has landed roles in the television sitcom Grace Under Fire and as body double for the X-Files' Gillian Anderson.

Boring has moved on, too. After five years at Valley Springs Middle School, she landed a job at a fledgling performing-arts magnet school in Charlotte. She arrived soon after the school finished construction on a two-story wing to house its new programs, and the facility is a dream, with dance studios, band rooms, a piano lab, and a spacious instructional theater. Last fall, she became chairwoman of the drama department. "I'm really very happy here," she says.

One day recently, students crowded around her office door signing up for auditions for the fall play. The tryouts were only a few weeks away, but Boring was still mulling over what play to produce. She was leaning toward doing Eleemosynary, another Lee Blessing play that probes family issues with an all-female cast. An encore of Independence, however, was out of the question. Thanks to the Black Mountain controversy, she thinks the play is so notorious now that any performance would be judged on its shock value, not its merit.

Someday, however, that may change. "I'd love to do it again," Boring adds. "It is certainly still my favorite play."

Vol. 10, Issue 2, Pages 25-28

Published in Print: October 1, 1998, as Dramatic License
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