# Boring v. Buncombe County Board of Education > Court of Appeals for the Fourth Circuit · February 13, 1998 · 136 F.3d 364 URL: https://www.frixlaw.com/law-library/cases/6963681 ## Case - **Full name:** Margaret BORING v. The BUNCOMBE COUNTY BOARD OF EDUCATION Charles Johnson, Chairman, Michael Anders Terry Roberson Bruce Goforth Bill Williams Grace Brazil Wendell Begley Dr. J. Frank Yeager, Superintendent Fred Ivey, Principal, each in his/her individual and official capacity, National School Boards Association North Carolina School Boards Association Virginia School Boards Association Council Of School Attorneys, Amici Curiae - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** February 13, 1998 - **Citations:** 136 F.3d 364 - **Precedential status:** Published - **Opinion:** Concurrence by Hamilton - **Judges:** Ervin, Hall, Hamilton, Luttig, Michael, Motz, Murnaghan, Niemeyer, Russell, Widener, Wilkins, Wilkinson, Williams - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6963681 ## How later opinions describe it (automated extraction) - holding that the selection of a play by a high school drama teacher did not involve a matter of public concern because the choice was made by the teacher in her capacity as a teacher in a matter dealing with curriculum - concluding that disagreements over curricular speech constitute ordinary employment disputes ## Opinion text 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 ease involving only speech of a private concern, as the majority dismissively states. Ante at 368. Instead, as gleaned from a fair reading of the complaint, this is a case 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. Despite the complete absence of any articulated, legitimate reason for restricting Boring’s speech, this court today permits her dismissal, in its oblique reference to Federal Rule of Civil Procedure 12(b)(6), without requiring any explanation from Ivey or the Board, holding that they are absolved of any wrongdoing under § 1983, see 42 U.S.C. § 1983 , because Boring engaged in no protected speech. 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, the Rule 12(b)(6) stage, however, we have no basis for determining whether the Board’s restriction reasonably related to legitimate pedagogical concerns. 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 ap *375 parently 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 by the Supreme Court and one to which we are bound to adhere until the Supreme Court states otherwise. Judge Mumaghan joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6963681. Public record. Not legal advice.