Final Legal Exam Sought for Idea of Academic Freedom

In 14 years as a high school drama teacher, Peggy Boring had compiled a winning record at the regional and state competitions that would have made her a local legend had football or basketball been her field.

In the 1992 regional competition, for example, she and her cast of four young actresses swept up 17 of 21 possible awards for their performance of playwright Lee Blessing’s “Independence.” And they placed second in the state finals.

But none of this protected her when the Asheville community discovered that “Independence” is about a single mother’s effort to hold on to her three grown but troubled daughters, one of whom is a lesbian. Denounced for staging “dirty plays,” Boring was transferred to a middle school.

Now her fight to get back her job may answer a fundamental issue of law: Do teachers, while they are in the classroom, have constitutional rights of free speech and academic freedom?

In February, the federal appeals court in Richmond, Va., threw out her lawsuit on a 7-6 vote and characterized “academic freedom” in high schools as something of a dangerous constitutional myth left over from the 1960s. In public schools, the court stressed, elected school boards control the curriculum--and that involves everything in learning, including the school newspaper, library books and dramatic presentations.

But if there is no academic freedom, Boring and her legal allies warn, teachers will be vulnerable to retaliation by community activists who are upset by reports of classroom conduct that they deem objectionable. “I decided to see this through because embattled teachers deserve some protection,” said Boring, 55.

Group of Prominent Ministers Complains

She plans to appeal her case to the Supreme Court today, although the justices will probably not decide until the fall whether to hear it.

Ironically, “Independence,” the play that cost Boring her high school job, was produced for interscholastic competition. It was not intended to be performed at her school, the Charles D. Owen High School in Asheville.

But a portion of “Independence” was staged during a special English class. A student described the scene to her parents, who protested to the principal. Boring’s notoriety spread, and before long a group of prominent ministers complained that she had brought foul language as well as “blasphemy, premarital sex, homosexuality and promiscuity” into the high school.

Frank Yeager, the county schools superintendent, ordered her transferred to the middle school. “The people I heard from were upset with me for not firing her,” said Yeager, who since has retired. “There was a pretty strong feeling [that] this sort of thing should not happen in public school.”

Believing she had been pushed out of her job unfairly, Boring was convinced that her drama deserved a second act--with a happier ending. She filed suit contending that the school board had violated her 1st Amendment right to free speech and academic freedom by punishing her over the controversial content of an advanced theater production.

Principal Reportedly Told in Advance

Teachers should not be punished, her lawyers argued, just because of the ideas or behavior of the characters in students’ assigned reading. Boring pointed out that she had told the principal of the play, given him a copy of the script and invited him to attend a performance. He paid no heed until the parents protested.

Act II also had a bad ending for Boring, however, and it carried a far wider message. The influential and conservative U.S. 4th Circuit Court of Appeals said that teachers have no rights to free speech and academic freedom.

Judge H. Emory Widener Jr., writing for the court, called her case “nothing more than an ordinary employment dispute. That being so, the plaintiff has no 1st Amendment rights derived from her selection of the play.”

In the public schools, Widener held, elected school boards control the curriculum.

“We agree with Plato and [English philosopher Edmund] Burke and Justice [Felix] Frankfurter that the school, not the teacher, has the right to fix the curriculum,” the judge wrote. Teachers who overstep these bounds--even when the boundaries are not made clear in advance--cannot turn to the courts for legal protection, the appellate majority added.

The outcome starkly illustrates a trend that troubles teachers, their lawyers and some 1st Amendment advocates.

On the one hand, community activists on the right and left are becoming quicker to protest developments in the classroom that offend them. For Christian conservatives, the offense often involves matters of foul language, sex or homosexuality. Protests from the left are triggered by incidents involving alleged racism or sexism.

Often, individual teachers are targeted. And at the same time, the more conservative courts have made clear that they will not protect a teacher who comes under fire.

“This is a potentially dangerous decision in this climate,” Elliot Mincberg, legal director of People for the American Way, said of the North Carolina case. “We are seeing more incidents where teachers are targeted, and this decision puts them at significant risk. It says school boards have absolute carte blanche to discipline them over curriculum decisions which someone later disagrees with.”

The ruling also perturbed lawyers at the National Education Assn., the huge teachers’ union.

“This was not about the curriculum or even about whether this play was appropriate or inappropriate,” said Michael Simpson, the NEA’s assistant general counsel. “This was about a school board covering its behind because [it was] getting pressure from Christian conservatives.”

6 Judges Call Teacher ‘Scapegoat’

The six dissenting judges on the appeals court agreed, saying that school officials in Asheville had made Boring “a scapegoat” and used her to shield them.

“This is a case about a dedicated teacher who in no way violated any aspect of the approved curriculum, who followed every previously required standard set forth for the selection and approval of school productions and who, when requested to do so, redacted certain portions of the production,” wrote Judge Clyde Hamilton. The teacher, “nevertheless, lost her position as a result of the production, all for the sole purpose of shielding the principal and board from the wrath of the public outcry.”

Boring said she was surprised that the appeals court regarded her case as one involving control of the curriculum.

“I wasn’t trying to wrest the curriculum from anyone,” she said. “I was trying to provide an educational experience for an advanced theater group.”

Her appeal to the Supreme Court--the case is called Boring vs. Buncombe County Board of Education (a name Charles Dickens might have invented)--focuses instead on teachers’ rights of free speech and academic freedom in the classroom.

Courts Divided Over Free Speech in School

Teachers have the same free-speech rights as other citizens to speak out on matters of public concern, or even to write letters to local newspapers criticizing their school boards. But the lower courts are divided over whether these general rights extend into school.

On a rhetorical level, “academic freedom” lives on through some glowing passages in the Supreme Court opinions of the 1960s. Boring’s lawsuit quotes all of them.

“Academic freedom [is] a transcendent value to all of us [and] a special concern of the 1st Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom,” wrote Justice William J. Brennan in 1967. “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”

The high court’s decision in that case upheld the free-speech right of Harry Keyishian, an English professor at a state college in Buffalo, N.Y., who had challenged the state law that required teachers to sign loyalty oaths and disavow a belief in communism.

Two years later, during the Vietnam War, the high court sided with high school students who wore black armbands to class as a protest. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” wrote Justice Abe Fortas in the case of Tinker vs. Des Moines Independent School District.

By the 1980s, however, the Supreme Court had backed away from those broad pronouncements without ever specifically overruling the earlier decisions.

In 1986, for example, the court upheld a high school principal’s decision to discipline a student leader for including a sexual innuendo in a speech to an assembly. The student’s speech must bow to the demands of preserving order and civility at school, the court said in Bethel School District vs. Fraser.

Two years later, the justices said that the student editors of a school newspaper do not have a free-speech right to choose the articles. The decision, in Hazelwood School District vs. Kuhlmeier, said that the school paper was part of the curriculum and it upheld a principal’s last-minute move to excise two articles on teen pregnancy.

In the decade since, that decision has been applied regularly against teachers. The Richmond appeals court relied on it directly in the ruling against Boring.

School Officials’ Authority Upheld

The Supreme Court’s opinion confirmed “educators’ authority over school-sponsored publications, theatrical productions and other expressive activities . . . that may be characterized as part of the curriculum,” Judge Widener wrote for the appeals court. School officials, not teachers, have the exclusive power to decide the curriculum, he concluded.

Gwendolyn Gregory, a veteran attorney for the National School Boards Assn., said that the appeals court was right, even if its decision seems unfair in Boring’s case.

“I envy those kids. I was a theater student in high school and would have loved to have this teacher,” she said. “But you can’t run a school if the teachers have a right to go to court and second-guess decisions about the curriculum. We say it is an absolute right of the school board and the administrators to make those decisions.

“This issue has been popping all around the country,” she added, although teachers’ claims have rarely been as attractive as Boring’s.

Among those asserting their free-speech rights have been teachers who have made racist comments, used gutter language or made remarks characterized as sexually harassing.

“The term ‘academic freedom’ still gets thrown around a lot but I don’t think there is any such right in a legal sense,” Gregory said.

Teachers are not claiming a right to control the curriculum, countered Jeremiah Collins, a lawyer working on Boring’s appeal.

Had the principal said that the teacher could not use the play for her drama class, she would have no right to disagree, he said. “But this case goes much further. This says anything you say or do in the classroom can be grounds for firing you or disciplining you,” Collins said.

Elizabeth Carpenter, the student actress who played the key role in the original drama, said that she is still taken aback by the controversy that engulfed her teacher.

“There was a lesbian character on stage. That was all. That might seem like a minor thing but, in a small mountain community, that was enough to throw up a red flag,” said Carpenter, who now works at the Seattle Repertory Theater.

She praised Boring as “a great teacher who changed my life. My parents didn’t have a lot of money and she got me on the track to get a scholarship and an apprenticeship in the theater.”

‘Why Do They Hate You, Grandma?’

Regardless of the outcome in the Supreme Court, the case already has had something of a happy ending for Boring.

She decided last year to leave the Asheville area and put the controversy behind her.

“I think the final straw,” she said, “was having my grandchild come home from first grade and ask me: ‘Why do they hate you, Grandma?’ ”

Soon after, she was offered a position as the drama teacher at a new arts magnet school in Charlotte.

“It was a painful route to get here,” Boring said, “but this is heaven for me.”