William Lee v. York County School Division

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 WILLIAM LEE,
Plaintiff-Appellant,
v.
YORK COUNTY SCHOOL DIVISION;
STEVEN R. STAPLES, In his official
capacity as Superintendent of the
York County School Division; YORK No. 06-1363  COUNTY SCHOOL BOARD; R. PAGE
MINTER; BARBARA S. HAYWOOD;
LINDA MEADOWS; MARK A.
MEDFORD; BARRENT M. HENRY, In
their official capacity as members
of the Board of Education for York
County,
Defendants-Appellees. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca Beach Smith, District Judge.
(4:05-cv-00125-RBS)
Argued: November 30, 2006
Decided: May 2, 2007
Before KING and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Shedd and Senior Judge Hamilton concur.

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COUNSEL
ARGUED: Gary Alvin Bryant, WILLCOX & SAVAGE, Norfolk,
Virginia, for Appellant. Robert William McFarland, MCGUIRE-
WOODS, LLP, Norfolk, Virginia, for Appellees. ON BRIEF: Steve
C. Taylor, Chesapeake, Virginia, for Appellant. Steven R. Zahn,
MCGUIREWOODS, LLP, Norfolk, Virginia; William H. Baxter, II,
Erin M. Sine, MCGUIREWOODS, LLP, Richmond, Virginia, for
Appellees.
OPINION
KING, Circuit Judge:
Plaintiff William Lee appeals from the district court’s award of
summary judgment to the York County, Virginia, School Board, five
members of the County’s Board of Education, and the County’s
School Superintendent (collectively, the "School Board" or the
"Board") on his § 1983 free speech claim. See Lee v. York County
Sch. Div., 418 F. Supp. 2d 816 (E.D. Va. 2006) (the "Opinion"). Lee,
who teaches high school in York County, initiated this suit in the
Eastern District of Virginia in August 2005, maintaining that the
School Board had violated his rights under the First Amendment’s
Free Speech Clause by removing materials he had posted on the bul-
letin boards in his classroom. In its February 23, 2006 Opinion, the
district court rejected Lee’s claim, concluding that his postings were
curricular in nature and thus did not constitute speech on a matter of
public concern. In substance, Lee maintains on appeal that he pos-
sesses a First Amendment right to post his materials on the classroom
bulletin boards. This contention is contrary to the relevant precedent
and, as explained below, we affirm.
I.
A.
In 2001, Lee began teaching Spanish at Tabb High School, a public
high school operated by the School Board in Yorktown, Virginia.1
1The facts underlying this appeal are presented in the light most favor-
able to Lee, as he is the non-moving party with respect to the School
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Prior to his assignment at Tabb High, Lee had been employed by the
School Board for about a year, as a teacher at a York County middle
school. Sometime in October 2004, an employee of the School Board
received a complaint from a private citizen who expressed concern
over certain materials posted on the bulletin boards within Lee’s class-
room.2 The crux of the citizen’s complaint was that some of Lee’s
postings were overly religious in nature. After receiving the com-
plaint, the School Board asked Crispin Zanca, the Principal of Tabb
High, to investigate the matter. As Principal, it is Zanca’s obligation
to ensure that teachers adhere to the Board’s curriculum guidelines
and policies.
On October 19, 2004, after speaking with the School Board about
the complaint regarding Lee, Zanca proceeded to Lee’s classroom to
discuss the matter with him. Lee was absent from school that day,
however, and Zanca examined the materials posted on the bulletin
boards in his absence. In so doing, Zanca discovered certain items
that, in his view, should not have been posted in a compulsory class-
room setting. Specifically, he testified that he "could not find any rea-
son why [these items] would be posted in a classroom." J.A. 161.3
Zanca removed five items (collectively, the "Removed Items" or the
"Items") from Lee’s bulletin boards: (1) a 2001 National Day of
Prayer poster, featuring George Washington kneeling in prayer; (2) a
May 15, 2004, Daily Press news article entitled "The God Gap," out-
lining religious and philosophical differences between President Bush
and his challenger John Kerry; (3) an October 14, 2002, USA Today
news article entitled "White House Staffers Gather for Bible Study,"
describing how then Attorney General Ashcroft led staffers in volun-
tary Bible study sessions; (4) a November 1, 2001, Daily Press news
article, detailing the missionary activities of a former Virginia high
school student, Veronica Bowers, who had been killed when her plane
Board’s summary judgment motion. See Seabulk Offshore, Ltd. v. Am.
Home Assur. Co., 377 F.3d 408, 418 (4th Cir. 2004). The facts are drawn
from the summary judgment record made in the district court.
2The identity of the complaining private citizen is sealed, pursuant to
a protective order entered by the district court on November 22, 2005.
3Citations to "J.A. ___" refer to the Joint Appendix filed by the parties
in this appeal.
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was shot down in South America; and (5) a June 2001 Peninsula Res-
cue Mission newsletter, highlighting the missionary work of Bowers.4
Zanca placed the Removed Items on Lee’s desk in the teachers’
lounge and left an explanatory note in Lee’s school mailbox.
In his deposition for this case, Zanca testified that neither Tabb
High School nor the School Board has any written policies on what
a teacher may properly post on classroom walls or bulletin boards.
Zanca explained, however, that there is an applicable unwritten pol-
icy, custom, and practice for York County teachers in that regard,
authorizing teachers to place materials on bulletin boards that relate
to the curriculum being taught or that are of personal interest to them.
For example, some teachers place famous quotes, articles on current
events, and pictures of sports figures on the bulletin boards of their
classrooms. Zanca explained that, as a general matter, he has always
relied on the sound judgment of Tabb High’s teachers as to what
materials should be posted in their classrooms.
Although there is no written policy on the posting or removal of
classroom materials, Zanca explained that his duties as Principal
include the monitoring of such postings, as well as the removal of any
postings that are inappropriate for the school setting. In determining
whether any particular item should be removed, the School Board has
accorded its principals broad discretion to evaluate and decide which
postings are appropriate for a particular classroom setting. Zanca tes-
tified that the teachers at Tabb High have always understood that any
postings contradicting the unwritten policy are subject to removal.
Under the unwritten policy, inappropriate postings include items that
violate the First Amendment, that are offensive, that use profanity, or
that are otherwise unrelated to curricular objectives. In evaluating
whether a particular posting is subject to removal, Zanca primarily
assesses whether it is relevant to the curriculum being taught by the
particular teacher.5 He testified that, although certain materials may
4Attached to the Peninsula Rescue Mission newsletter was an envelope
requesting donations for the organization’s missionary work.
5Prior to the incident underlying this appeal, Zanca had never removed
posted materials from any classroom. He has had, however, teachers ask
whether a questionable item would be appropriate to post in the class-
room prior to so doing. Zanca has also removed inappropriate items
posted on bulletin boards in Tabb High’s hallways.
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be inappropriate if posted generally, they could well be appropriate
when used in connection with a specific curricular objective. For
example, some current events postings may only be appropriate when
used in a classroom where history or government courses are taught.
When Zanca first viewed the Removed Items, he saw that certain
of the postings prominently included religious terms such as "Bible"
or "God." Although Zanca did not read any of the articles in their
entirety, he exercised his discretion as Principal on the five Removed
Items because he saw them as overly religious and thus violative of
the Establishment Clause of the First Amendment.6 Aside from his
determination that the postings might be legally problematic, Zanca
believed the Removed Items to be irrelevant to the Spanish curricular
objectives that Lee was obliged to follow within his classroom.
When Lee returned to Tabb High three days later, he found the
Removed Items on his desk and Zanca’s note in his mailbox. Lee
promptly discussed the matter with Zanca, who explained that he had
received a citizen’s complaint about postings in Lee’s classroom.
Zanca informed Lee that the Removed Items were taken down
because they were inappropriate in a Spanish classroom. Lee thereaf-
ter retained a lawyer, who wrote to the Board Superintendent request-
ing permission for Lee to repost the Removed Items. Following an
investigation by the Board’s counsel, Lee’s request to repost was
denied.
During his deposition, Lee agreed that the School Board has no
written policies concerning what can be appropriately posted on class-
room bulletin boards. He acknowledged the existence of an unwritten
Board policy, practice, and custom, however, that allows teachers to
6When the Removed Items were taken from Lee’s classroom, Zanca
decided not to remove a posted picture of Boy Scouts praying in memory
of the September 11, 2001, terrorist attacks or a picture of a United
States military pilot whose helmet said "Pray for America." He left the
Boy Scouts picture on the bulletin board because many of the students
and their parents had been personally affected by the September 11th ter-
rorist attacks, and he felt that the picture embodied a sensitive issue for
Tabb High. Zanca left the pilot’s picture out of respect for Lee’s prior
military experience.
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post materials related to curricular objectives, or to post materials of
a general and personal nature that are consistent with the educational
mission of Tabb High. Lee denied placing the Removed Items on the
bulletin boards to endorse his own faith, did not believe that the Items
were related to any particular Spanish curricular objective, and had
not referred to any of them while teaching. When asked why he had
posted the Removed Items, Lee explained that he had posted each of
them either because he liked it or because it was uplifting. He also
explained that a teacher could post most anything in a classroom and
make it relevant to the curriculum being taught. He said that school-
teachers often use creative materials to catch and retain the attention
of students.
Lee also acknowledged that he had posted the Removed Items
because they were, in his opinion, "positive and good for the kids."
J.A. 53. Because of his position as a teacher, Lee felt responsible for
more than just the academic well-being of his students. He stated,
"I’m accountable in that classroom for [the students’] welfare and
their attitudes and their feelings, which are sensitive and fluctuate
daily, and I find the hope embodied in some images to be beneficial."
Id. For example, with respect to the poster of George Washington,
Lee testified that it contained "a positive figure and good for every
classroom in the school." Id. at 103. With respect to the article on
Attorney General Ashcroft, Lee explained it might be helpful to a stu-
dent seeking hope and inspiration. See id. at 61. Finally, with respect
to the Peninsular Rescue Mission newsletter, Lee said that it was
posted to encourage students not to be ashamed of their faith and
because it dealt with an eastern Virginia high school student who had
studied Spanish. See id. at 68-69.
B.
On August 11, 2005, Lee filed his Complaint in this case, along
with a motion for a preliminary injunction, alleging that the School
Board had controverted § 1983 and deprived him of his First Amend-
ment right to free speech.7 On September 13, 2005, the district court
7The First Amendment contains, inter alia, a Free Speech Clause and
an Establishment Clause. The Free Speech Clause provides that "Con-
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denied Lee’s request for a preliminary injunction and ordered an
expedited discovery schedule. After discovery, both Lee and the
School Board filed motions for summary judgment, agreeing that
there were no disputes of material fact.
On February 23, 2006, the court filed its Opinion and Final Order
in this matter, granting the Board’s motion for summary judgment
and denying Lee’s motion for summary judgment. See Opinion 1.8
Relying on our decision in Boring v. Buncombe County Board of Edu-
cation, 136 F.3d 364 (4th Cir. 1998) (en banc), the court applied the
Supreme Court’s Pickering-Connick analysis and assessed whether
Lee’s postings constituted speech protected by the First Amendment.
See id. at 7-9.9 Upon so doing, the court concluded that the Removed
Items were, as a matter of law, curricular in nature. See id. at 14-16.
The court first focused on the broad definition of "curriculum"
applied by our en banc Court in Boring, noting that "curricular speech
encompasses a wide range of types of communication." Id. at 13. The
court concluded that this definition of curriculum includes teaching
methodology, as it "is nothing more than an execution of a teacher’s
gress shall make no law . . . abridging the freedom of speech." U.S.
Const. amend. I. The Establishment Clause provides that "Congress shall
make no law respecting an establishment of religion." Id. Although both
clauses are mentioned in this dispute, Lee’s § 1983 claim arises under the
Free Speech Clause only. The legal principles governing an Establish-
ment Clause claim are thus not at issue in this appeal.
Section 1983 of Title 42 provides, in relevant part, that "[e]very person
who, under color of any statute, ordinance, regulation, custom, or usage,
of any State . . . subjects . . . any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the Con-
stitution and laws, shall be liable to the party injured."
8The district court’s Opinion of February 23, 2006, is found in the
Joint Appendix at J.A. 282-315.
9The Pickering-Connick analysis is derived from the Supreme Court’s
decisions in Pickering v. Board of Education, 391 U.S. 563 (1968), and
Connick v. Myers, 461 U.S. 138 (1983). As further explained herein, this
analytical framework is used to determine whether a public employee’s
speech is protected under the First Amendment. See Urofsky v. Gilmore,
216 F.3d 401, 406 (4th Cir. 2000) (en banc).
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employment duties." Id. (citing Urofsky v. Gilmore, 216 F.3d 401,
409 (4th Cir. 2000) (en banc) ("It cannot be doubted that in order to
pursue its legitimate goals effectively, the state must retain the ability
to control the manner in which its employees discharge their duties
and to direct its employees to undertake the responsibilities of their
positions in a specified way.")).
Applying the Boring principles to Lee’s free speech claim, the dis-
trict court concluded that the "postings on Lee’s classroom walls
qualify as the type of materials that can constitute curricular speech."
Opinion 14. Specifically, the court determined that the Removed
Items constituted curricular speech for two reasons: (1) Lee used the
Items as part of his teaching methodology, and (2) Lee sought to
instruct and impart knowledge to his students through use of the
Items. See id. Because the court determined that the Removed Items
were curricular in nature, it also ruled, on the basis of Boring, that
they were per se not a matter of public concern. See id. at 12. Thus,
because Lee’s speech was not a matter of public concern, he pos-
sessed no First Amendment protection in posting the Removed Items
in his classroom. See id. at 22.
On March 21, 2006, Lee filed a timely notice of appeal, and we
possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
As a general proposition, we review de novo a district court’s
award of summary judgment, viewing the facts in the light most
favorable to the non-moving party. See Seabulk Offshore, Ltd. v. Am.
Home Assur. Co., 377 F.3d 408, 418 (4th Cir. 2004). An award of
summary judgment may appropriately be made only "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judg-
ment as a matter of law." Fed. R. Civ. P. 56(c). Finally, in applying
the Pickering-Connick legal principles to the issues in this appeal, we
review de novo the district court’s ruling that Lee’s postings of the
Removed Items did not constitute speech on a matter of public con-
cern. See Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en
banc).
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III.
A.
On appeal, Lee essentially contends that he possesses a First
Amendment free speech right to post certain materials on the School
Board’s classroom bulletin boards. In addressing this contention, it is
important to first acknowledge that schoolteachers do not "shed their
constitutional rights to freedom of speech or expression at the school-
house gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 506 (1969). Nevertheless, certain limitations are placed on the
free speech rights of schoolteachers, such as Lee, due to the nature of
their employment by government-operated schools. More specifically,
it seems settled that "the state, as an employer, undoubtedly possesses
greater authority to restrict the speech of its employees than it has as
sovereign to restrict the speech of the citizenry as a whole." Urofsky
v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc); see also
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) ("[T]he State has
interests as an employer in regulating the speech of its employees that
differ significantly from those it possesses in connection with regula-
tion of the speech of the citizenry in general.").
In assessing whether a public employee’s speech is protected by
the First Amendment, and thus not subject to regulation by a state-
entity employer, a court is obliged to balance "‘the interests of the
[employee], as a citizen, in commenting upon matters of public con-
cern and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.’"
Connick v. Myers, 461 U.S. 138, 142 (1983) (alteration in original)
(quoting Pickering, 391 U.S. at 568).10 In performing this balancing
10In his appellate brief, Lee urges us to reject the Pickering-Connick
standard, and instead apply what is known as the Tinker analysis to his
First Amendment free speech claim. The Tinker analysis was articulated
by the Supreme Court in Tinker v. Des Moines Independent Community
School District, 393 U.S. 503 (1969) and typically applies to disputes
involving the speech of students, not teachers. Under Tinker, the School
Board would not be able to regulate Lee’s speech if it was unrelated to
the curriculum and did not "materially and substantially interfere with
the requirements of appropriate discipline in the operation of the school."
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test, a reviewing court must make two inquiries. It examines, first of
all, "whether the speech at issue was that of a private citizen speaking
on a matter of public concern." Urofsky, 216 F.3d at 406. If the
employee was speaking as a citizen on a matter of public concern, the
court must "consider whether the employee’s interest in First Amend-
ment expression outweighs the public employer’s interest in what the
employer has determined to be the appropriate operation of the work-
place." Id.
As explained below, under the Pickering-Connick balancing stan-
dard Lee’s classroom postings do not constitute speech concerning a
public matter, because they were of a curricular nature. Thus, Lee
cannot use the First Amendment to justify his assertion that he is free
to place his postings on the classroom bulletin boards without over-
sight by the School Board. In order to constitute protected speech
under the First Amendment, the speech at issue must satisfy both
prongs of the Pickering-Connick framework. See Urofsky, 216 F.3d
at 406. Because Lee’s speech fails to satisfy the first of those inqui-
ries, we need not reach the second inquiry and decide whether the
interests of the School Board (as employer) outweigh those of Lee (as
teacher-employee).
B.
In applying the Pickering-Connick framework to this matter, we
first inquire whether Lee, in posting the Removed Items in his class-
room at Tabb High, was speaking as a private citizen on a matter of
public concern. Lee maintains on appeal that he can post any materi-
als he wishes on the classroom bulletin boards provided that, in so
doing, he speaks not as a teacher, but instead as a private citizen only.
He thus maintains that the fact he posted the Removed Items in his
classroom is irrelevant to the issue of whether he was acting as a pri-
vate citizen or as a schoolteacher. See Urofsky, 216 F.3d at 407 ("An
Tinker, 393 U.S. at 509 (internal quotation marks omitted). Because, as
explained infra, Lee’s speech in this dispute was curricular in nature, we
are obliged to apply the Pickering-Connick standard as articulated in
Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir.
1998) (en banc).
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employee may speak as a citizen on a matter of public concern at the
workplace, and may speak as an employee away from the work-
place."); but see Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006)
(concluding that when public employee speaks pursuant to his official
duties, his speech is not entitled to First Amendment protection under
the Pickering-Connick standard).11 Lee further contends that each of
the Removed Items constitutes speech concerning a public matter,
because each item involves either a political issue or a matter of inter-
est to the community. Id. at 406-07 ("Speech involves a matter of
public concern when it involves an issue of social, political, or other
interest to a community."). He emphasizes that, notwithstanding their
religious overtones, the Removed Items involve political information
and issues (e.g., the article "The God Gap," explaining information on
presidential candidates; the article "White House Staffers Gather for
Bible Study," outlining activities of an Attorney General; and the
National Day of Prayer poster, advertising a Presidential Proclama-
tion) and matters of general community interest (e.g., the articles con-
cerning a local woman killed in a plane crash).
Contentions such as these might normally be persuasive, and they
could well lead a court to conclude that contested speech was made
by a private citizen on a matter of public concern. In this case, how-
ever, Lee’s contentions fail to take account of important consider-
ations of precedent. Courts have generally recognized that the public
schools possess the right to regulate speech that occurs within a com-
pulsory classroom setting, and that a school board’s ability in this
regard exceeds the permissible regulation of speech in other govern-
mental workplaces or forums. See Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 267 (1988) ("We thus recognize that the determination
of what manner of speech in the classroom . . . is inappropriate prop-
erly rests with the school board rather than with the federal courts."
11The Supreme Court in Garcetti held that "when public employees
make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer discipline." 126
S.Ct. at 1960. The Court explicitly did not decide whether this analysis
would apply in the same manner to a case involving speech related to
teaching. Id. at 1962. Thus, we continue to apply the Pickering-Connick
standard as articulated in Boring to this appeal.
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(internal quotation marks and citation omitted)); Edwards v. Cal.
Univ. of Pa., 156 F.3d 488, 491 n.1 (3d Cir. 1998) (recognizing that
"a public school teacher’s in class conduct is not protected by the
First Amendment" (internal quotation marks omitted)); Bishop v.
Aronov, 926 F.2d 1066, 1073 (11th Cir. 1991) ("[W]here the in-class
speech of a teacher is concerned, the school has an interest not only
in preventing interference with the day-to-day operation of its class-
rooms . . . , but also in scrutinizing expressions that the public might
reasonably perceive to bear its imprimatur." (internal quotation marks
omitted)); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176
(3d Cir. 1990) (concluding that teacher does not possess First Amend-
ment right to choose his own classroom management techniques).
Of additional importance, the enhanced right of a school board to
regulate the speech of its teachers in classroom settings is supported
by the Supreme Court’s explicit recognition that First Amendment
free speech rights in a school environment are not "automatically
coextensive with the rights of adults in other settings." Hazelwood,
484 U.S. at 266 (internal quotation marks omitted). As the Hazelwood
Court explained, the exercise of such rights "must be applied in light
of the special characteristics of the school environment." Id. (internal
quotation marks omitted). Put simply, our school systems are respon-
sible for adequately and properly educating our youth. A school board
carrying out this vital responsibility is entitled to some enhanced con-
trol over expressions within its classrooms, so that it can "assure . . .
that readers or listeners are not exposed to material that may be inap-
propriate for their level of maturity, and that the views of the individ-
ual speaker are not erroneously attributed to the school." Id. at 271;
see also Ward v. Hickey, 996 F.2d 448, 452 (1st Cir. 1993) ("[I]t is
well-settled that public schools may limit classroom speech to pro-
mote educational goals."). Thus, "[a] school need not tolerate student
[or teacher] speech that is inconsistent with its basic educational mis-
sion even though the government could not censor similar speech out-
side the school." Id. at 266 (internal quotation marks and citation
omitted).
In order to take account of the characteristics of a dispute involving
in-class speech by a teacher-employee, we have concluded that spe-
cial considerations should be assessed by a reviewing court on
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whether the contested speech constitutes a matter of public concern.12
In Boring v. Buncombe County Board of Education, for example, we
concluded that a teacher’s selection of a school play constituted
speech that did not implicate a matter of public concern, and thus was
not protected by the First Amendment. 136 F.3d 364, 369 (4th Cir.
1998) (en banc). The teacher in that case, Margaret Boring, had been
transferred for, inter alia, her selection of a controversial school play,
Independence, that was performed by four high school students at a
state competition. Id. at 366-67. Boring alleged that her transfer was
in retaliation for the selection of the play and therefore violated her
First Amendment right of free speech. Id. at 367.
In concluding that Boring’s speech was not protected by the First
Amendment, we analyzed whether the speech at issue — her selection
of the school play — was curricular in nature, using the term "curricu-
lum" as it had been defined and applied by the Supreme Court in
Hazelwood. Id. at 368.13 There, the Supreme Court defined "curricu-
lum" as
school-sponsored publications, theatrical productions, and
other expressive activities that students, parents, and mem-
bers 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.
484 U.S. at 271. The en banc Boring majority decision, authored by
our colleague Judge Widener, determined the selection of the school
12The parties do not contest the proposition that Lee’s postings qualify
as in-class speech.
13In Boring, we examined the definition of "curriculum" in Webster’s
Third New International Dictionary and readily determined that there is
no material difference between the dictionary definition of the term and
the definition used and applied by the Court in Hazelwood. See 136 F.3d
at 367-68. For the purposes of this appeal, we rely primarily on the defi-
nition applied in Hazelwood.
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play to be curricular "from the fact that it was supervised by a faculty
member, Mrs. Boring; it was performed in interscholastic drama com-
petitions; and the theater program at the high school was obviously
intended to impart particular skills, such as acting, to student partici-
pants." Id. at 368. Judge Widener’s opinion concluded that "[t]hese
factors demonstrate beyond doubt that ‘students, parents, and mem-
bers of the public might reasonably perceive [the production of the
play Independence] to bear the imprimatur of the school.’" Id. (alter-
ation in original) (quoting Hazelwood, 484 U.S. at 271).
The Boring Court reasoned that, if contested speech is curricular in
nature, it does not constitute speech on a matter of public concern. See
id. at 368-69. In so concluding, Judge Widener reasoned that disputes
over curriculum constitute ordinary employment disputes and do not
implicate speech on matters of public concern. See id. at 369.14 Thus,
when a First Amendment free speech dispute involves a teacher-
employee who is speaking within the classroom, the determination of
whether her speech involves a matter of public concern is dependent
on whether or not the speech is curricular. This determination —
whether the contested speech is curricular in nature — is a question
of law for the court.15
14The Boring Court also addressed Boring’s additional contention that
"the district court erred in holding that the defendants had a legitimate
pedagogical interest in punishing [Boring] for her speech." 136 F.3d at
369. Lee does not contend on appeal that the School Board lacked a
legitimate pedagogical interest in removing his postings from the class-
room bulletin boards.
15Although Boring did not directly hold that the determination of
whether speech is curricular is a question of law, the majority applied the
Hazelwood definition as if it were an issue of law rather than of fact. See
136 F.3d at 367-68 (upholding district court’s conclusion that speech was
curricular). Furthermore, under our analytical framework, the determina-
tion of whether contested speech is a matter of public concern is depen-
dent on whether the speech is curricular in situations involving in-class
teacher speech. It is thus reasonable for the curricular determination, like
the general determination on whether speech is a matter of public con-
cern, to be a question of law. As such, it is irrelevant that Lee and Zanca
may have subjectively believed that the Removed Items were not part of
the curriculum of teaching Spanish at Tabb High, because the Hazelwood
definition encompasses more than a subjective view of curriculum.
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C.
In evaluating whether a schoolteacher’s in-class speech is curricu-
lar in nature, and thus not a matter of public concern, we are obliged
to apply the Hazelwood definition of "curriculum." Boring, 136 F.3d
at 368. To be curricular under this definition, the contested speech
must satisfy both of the definition’s categories of requirements. The
Hazelwood definition first explains that, in order for a school board
to regulate speech, such speech must constitute school-sponsored
expression bearing the imprimatur of the school. 484 U.S. at 271.
Hazelwood then narrows this broad category by also requiring that,
in order to be considered curricular in nature, the speech must also be
supervised by faculty members and designed to impart particular
knowledge to the students. Id. Lee contends on appeal that his class-
room postings of the Removed Items do not fit within the Hazelwood
definition of "curriculum," in that they were neither directly nor indi-
rectly related to the Spanish curricular objectives he is obliged to
teach. Furthermore, Lee testified that the Removed Items were not
posted for Spanish instructional purposes. According to Lee, because
the Removed Items are not related to his instruction of Spanish, they
are not curricular speech. Using this narrow definition of curriculum,
Lee asserts that he has a First Amendment right to post any such
materials on the classroom bulletin boards.
In these circumstances, however, applying the pertinent legal prin-
ciples, Lee’s speech nevertheless was curricular in nature, because his
postings of the Removed Items constituted school-sponsored speech
bearing the imprimatur of Tabb High School, and they were designed
to impart particular knowledge to the students. We assess each of the
two categorical requirements of the Hazelwood definition — whether
the speech is school-sponsored bearing the imprimatur of the school,
and whether the speech is supervised by faculty members and
designed to impart knowledge to the students — in turn.
1.
First, on whether Lee’s postings constitute school-sponsored
speech bearing the imprimatur of the school, the Hazelwood defini-
tion of curriculum encompasses more than simply the objectives of a
specific course of study taught by a particular teacher. Indeed, our sis-
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ter circuits have interpreted school-sponsored speech bearing the
imprimatur of a school to include a variety of expressive activities
that occur on school property. See, e.g., Fleming v. Jefferson County
Sch. Dist. R-1, 298 F.3d 918, 931 (10th Cir. 2002) (concluding that
memorial tiles project — permitting residents to design tiles for
school walls — was school-sponsored speech bearing imprimatur of
school, because it was supervised by school officials and tiles would
be placed on school walls); Ward, 996 F.2d at 453 (concluding that
teacher’s in-class statement was school-sponsored speech); Bishop,
926 F.2d at 1074 (concluding that professor’s classroom statements
were school-sponsored expressive activities); Miles v. Denver Pub.
Sch., 944 F.2d 773, 777-78 (10th Cir. 1991) (concluding that teach-
er’s discussion of school rumor during class was school-sponsored
speech). In order to determine whether challenged teacher speech is
school-sponsored and bears the imprimatur of the school, a reviewing
court must examine whether it has been "so closely connected to the
school that it appears that the school is somehow sponsoring the
speech." Fleming, 298 F.3d at 925. A reviewing court should also
appraise the level of involvement the school had in organizing or
supervising the contested speech. Id.16
In applying this standard, Lee’s postings plainly constitute school-
sponsored speech bearing the imprimatur of the school. First,
although Lee did not refer to the Removed Items during instructional
time, they were constantly present for review by students in a compul-
sory classroom setting. As a general proposition, students and parents
are likely to regard a teacher’s in-class speech as approved and sup-
ported by the school, as compared to a teacher’s out-of-class state-
ments. See Ward, 996 F.2d at 453 ("[A] teacher’s statements in class
during an instructional period are also part of the curriculum and a
regular class activity."); Bishop, 926 F.2d at 1074 ("Tangential to the
authority over its curriculum, there lies some authority over the con-
duct of teachers in and out of the classroom that significantly bears
on the curriculum or that gives the appearance of endorsement by the
16As discussed by the Tenth Circuit in its Fleming decision, certain
expressive activities may be closely tied to a school, yet not school-
sponsored speech bearing the school’s imprimatur. See 298 F.3d at 925.
Such activities might include those sponsored by outside organizations
who happen to use school facilities after school hours. See id.
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university."). Furthermore, the Removed Items were not posted on a
private bulletin board owned by Lee, but on the school-owned bulle-
tin boards in his classroom. And, according to the parties, these bulle-
tin boards were subject to recognized restrictions on the materials that
could be properly posted there. In these circumstances, it would be
reasonable for students and parents alike to perceive that materials
posted on the classroom bulletin boards were closely connected with
Tabb High or had been approved by its administrators. Thus, the
materials posted on those bulletin boards were likely to be attributed
to Tabb High.
Second, the School Board, through Principal Zanca, maintained
oversight of the bulletin boards and their postings, including the
Removed Items. Although the teachers at Tabb High possess substan-
tial discretion in the selection of items to be posted in their class-
rooms, their exercise of that discretion was subject to the supervision
of the School’s Principal. Principal Zanca was responsible for moni-
toring the classroom bulletin boards, and he had authority to remove
inappropriate items. Thus, because the Removed Items were posted
on school-owned and -controlled bulletin boards in a compulsory
classroom setting, Lee’s actions in posting these Items would reason-
ably be imputed to Tabb High.
2.
Although a broad category of speech made in a school setting is
properly considered school-sponsored, the Hazelwood definition also
limits curricular speech by requiring that it be supervised by faculty
members and designed to impart particular knowledge to the students.
Lee’s postings readily satisfy these two requirements, as well. First,
as discussed above, the classroom bulletin boards and their contents
were supervised by the teachers, who were the only persons in the
school authorized to post items on the bulletin boards, and by Princi-
pal Zanca, who oversaw and monitored all such postings.
Second, although Lee contends that the definition of "curriculum"
should be limited to speech related to traditional classroom instruc-
tion, classroom speech can readily be designed to impart particular
knowledge, and yet not otherwise relate to the curricular objectives
that a teacher must follow. Whether classroom speech is designed to
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impart particular knowledge has a broader meaning than the name of
a traditional course of study, or the designation of materials used to
achieve specific curricular objectives. See Bannon v. Sch. Dist. of
Palm Beach County, 387 F.3d 1208, 1214-15 (11th Cir. 2004) (per
curiam) (concluding that after-school beautification project, which
permitted students to paint murals on school’s walls, was designed to
impart particular knowledge to students because "it allowed student
participants to express themselves artistically, allowed student audi-
ences to appreciate their fellow students’ artwork, and promoted
school spirit"). Classroom speech can impart particular knowledge if
its purpose is to convey a specific message or information to students.
That specific message need not relate to, for example, Spanish
instruction, but could instead constitute information on social or
moral values that the teacher believes the students should learn or be
exposed to.
In the circumstances presented here, the Removed Items were
plainly "designed to impart particular knowledge" to the students in
Lee’s classroom. Lee testified that, along with his obligation to teach
Spanish, he was responsible for the emotional and moral well-being
of his students. In order to satisfy this responsibility, Lee posted the
Removed Items on the classroom bulletin boards to inform his stu-
dents of certain positive figures and these figures’ social and moral
values. For example, Lee posted the poster of George Washington
because he wanted to show the students that George Washington was
a positive figure in American history. He posted the newspaper arti-
cles on President Bush and Attorney General Ashcroft because he
wanted to show the students examples of political figures he believes
have good social and religious values. Finally, Lee posted the articles
on the local missionary to show the students an example of a local
person who used her ability to speak Spanish to help others and who
was not ashamed of her faith. Through these postings, Lee sought to
impart the particular knowledge of these figures and their values to
his students in order to expose the students to social and moral values
he deemed beneficial to their emotional growth.
Although schoolteachers provide more than academic knowledge
to their students, it is not a court’s obligation to determine which mes-
sages of social or moral values are appropriate in a classroom.
Instead, it is the school board, whose responsibility includes the well-
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being of the students, that must make such determinations. Our con-
clusion on this point is entirely consistent with the "oft-expressed
view that the education of the Nation’s youth is primarily the respon-
sibility of parents, teachers, and state and local officials, and not of
federal judges." Hazelwood, 484 U.S. at 273. As observed by Judge
Widener in Boring, "it is far better public policy, absent a valid statu-
tory directive on the subject, that the makeup of the curriculum be
entrusted to the local school authorities who are in some sense
responsible, rather than to the teachers, who would be responsible
only to the judges." 136 F.3d at 371.
Because the Removed Items constitute school-sponsored speech
bearing the imprimatur of the school, and they were designed to
impart particular knowledge to the students at Tabb High, the Items
are curricular in nature. As such, the dispute over Lee’s postings of
the Removed Items is nothing more than an ordinary employment dis-
pute. See Boring, 136 F.3d at 369 (concluding that disagreements
over curricular speech constitute ordinary employment disputes). The
Items do not constitute speech on a matter of public concern and are
not protected by the First Amendment. See id.17
IV.
Pursuant to the foregoing, we affirm the district court’s award of
summary judgment to the School Board.
AFFIRMED
17In his appellate brief, Lee contends, in the alternative, that the School
Board violated his First Amendment free speech rights because it cen-
sored his postings on the basis of their viewpoint in an nonpublic forum,
and because the Board did not provide him with any written guidelines
on what could be posted. Because Lee’s speech was curricular and thus
not on a matter of public concern, it is not accorded any First Amend-
ment free speech protection. See Urofsky, 216 F.3d at 406 ("If a public
employee’s speech made in his capacity as a private citizen does not
touch upon a matter of public concern, the state, as employer, may regu-
late it without infringing any First Amendment protection.").
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