dissenting:
I respectfully dissent. Judge Thornburg delivered an excellent opinion, and I would affirm the judgment entered upon it.
I.
I note that the only question in the case is whether Mrs. Boring had a First Amendment right violated. Op. 1476-77. If she has stated a violation of a First Amendment right, she may be entitled to some relief; if she has not so stated a violation of a First Amendment right, there may be no relief granted.
II.
In connection with her claimed violation of a right under the First Amendment, a restatement of the few essential facts and Mrs. Boring’s position is appropriate.
Mrs. Boring was a teacher in the Charles D. Owen High School in Buncombe County, North Carolina. In the fall of 1991, she chose Independence as the play for four student actresses to perform. After the play was performed in a regional competition, upon a parent’s complaint, the school principal, Fred Ivey, informed Mrs. Boring that she and the students would not be permitted to perform the play in state competition. After a review of the play by Ivey and the superintendent of schools, Frank Yeager, Ivey relented and permitted performance of the play in the state competition, but with certain scenes deleted. In June 1992, Ivey requested Mrs. Boring’s transfer from Owen High School, which was granted, at no loss of pay, and Mrs. Boring was transferred to a middle school. The county board of education, after a hearing for Mrs. Boring, approved the transfer over Mrs. Boring’s protest. It is the transfer that Mrs. Boring complains violated her constitutional rights. She says her transfer was “... over the ideas expressed in the play1 and so violated her right to freedom of expression.”2 Op. 1477.
III.
The district court held:
Since Plaintiff has not engaged in protected speech, her transfer in retaliation for the play’s production did not violate constitutional standards.
The majority relies on the authority of Hurley v. Irish-American Gay, Lesbian & Bisexual Group, - U.S.-, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995), which it construed as giving First Amendment protection to “speech, regardless of whether the speaker originally generates the communication or personally advocates the ideas contained therein-” Op. 1477-78. (Giving as examples cable television operators, presentation of speech generated by other persons in opinion pages, etc.).
The majority held:
Just as selection of the above items constitutes protectable expression, so too a teacher’s selection of a play for her class to perform constitutes such expression.
Op. 1478.3
On that basis, the majority then stated the question and answer:
The question then becomes whether simply by examining Boring’s complaint a court can determine that the defendants’ asserted restriction on her speech was “reasonably related to legitimate pedagogical concerns.”
The answer is clear: Boring’s complaint tells us nothing about the defendants’ “le*1486gitimate pedagogical concerns” for restricting her speech. A court, therefore, has no basis for determining whether the restriction reasonably related to such concerns; and Boring specifically alleges that it did not.
Op. 1478.
The majority then adopted what it called the approach in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988): “We believe the approach set forth in Hazelwood, of requiring school authorities to provide a legitimate pedagogical basis for in-class speech restriction, provides the best means of navigating this challenge.” Op. 1482 (referring to a teacher’s in-class speech rights).
It reversed the district court for the sole reason that "... the district court should not have dismissed the complaint on the theory that the asserted restriction necessarily related to legitimate pedagogical concerns.” Op. 1479.
IV.
The difficulty with, and I assert the basic error in, the majority decision is that it finesses the central issue in the case: does a teacher have a First Amendment right to select a play which is a part of the curriculum of the school, or do the school authorities have that right?
At this point, it is well to note what is not before the court. The district court held against Mrs. Boring on her federal due process claim based on deprivation of property because of her transfer; on her federal liberty interest claim because of her transfer and public speculation growing out of her transfer; on her state claim for violation of free speech; on her state claim for deprivation of due process on account of her transfer; and on her state claim for deprivation of liberty interest. These rulings are not appealed.
The majority correctly notes that Mrs. Boring “only appeals the dismissal of her First Amendment claim.” Op. 1477. The district court noted that “[t]he issue here is whether Plaintiffs selection and production of the play was protected speech.” And the majority agrees: “a teacher’s selection of a play for her class to perform constitutes such [First Amendment protected] expression.” Op. 1478.
So the question before us is only whether the selection of the play Independence by Mrs. Boring is protected by the First Amendment.4
V.
I begin my discussion with the definition of curriculum:
3: all planned school activities including besides courses of study, organized play, athletics, dramatics, clubs, and home-room program.
Webster’s Third New International Dictionary, 1971, p. 557.
Hazelwood was a case in which the high school principal edited out of a student newspaper two pages on account of their content. The offending stories related to pregnant students and an on-going family dispute between the parents of a student. The newspaper was sponsored by the school, which paid for its printing. The revenue from sales of the paper amounted to about one-fourth of the cost of publishing the paper. The paper was part of a Journalism II course taught by a faculty member who supervised its preparation. Proofs were given to the principal for his approval before printing. The Court held that the newspaper was a part of the adopted curriculum of the school. The suit *1487was instituted by several student staff members of the newspaper who maintained that they had a right under the First Amendment to prevent the principal from deleting the stories with respect to pregnancy and the family quarrel. The Court sustained the principal.
In arriving at its decision, the Court distinguished the question in the cases which require a school to tolerate certain student speech from the question of whether the First Amendment requires the school to affirmatively promote certain student speech. In this connection, in holding that the newspaper was in the second category, the Court stated:
The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members 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 [footnote omitted].
Hazelwood, 484 U.S. at 271,108 S.Ct. at 570.
Thus, although Hazelwood did not concern a play, rather a newspaper, and did not concern teachers’ speech, rather students’, it did define a “theatrical production[ ] ... that students, parents and members of the public might reasonably perceive to bear the imprimatur of the school” as a “part of the school curriculum.” Not only is the Court’s definition consistent with Webster, I suggest we discount it at our peril.
VI.
With these thoughts in mind, the majority decision is, in my opinion, in error for two equally valid but related reasons.
A.
Mrs. Boring’s selection of the play Independence, and the editing of the play by the principal, who was upheld by the superintendent of schools, does not present a matter of public concern and is nothing more than an ordinary employment dispute. That being so, Mrs. Boring has no First Amendment rights derived from her selection of the play Independence.
In a ease following and relying on Hazel-wood on facts so near to those in the case at hand as to be indistinguishable, the Fifth Circuit came to the conclusion I have just recited in Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir.1989), cert. denied, 496 U.S. 926, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990). Kirkland was a ease in which the employment contract of a high school history teacher was not renewed. He alleged the nonrenewal was a consequence of his use of an unapproved reading list in his world history class. The high school had provided the teacher with a supplemental reading list for his history class along with a copy of the guidelines used to develop and amend that list. He was aware of the guidelines and understood that if he was dissatisfied, a separate body of reading material could be used in his class if he obtained administrative approval. The teacher, however, used his own substitute list and declined to procure the approval of the school authorities for his substitute list. The authorities at his high school then recommended that his contract not be renewed at the end of the next academic year, which was affirmed by the board of trustees, much like Mrs. Boring’s transfer was affirmed by the school board in this case after a recommendation by the administrative authorities.
The court held that to establish his constitutional claim, Kirkland must have shown that his supplemental reading list was constitutionally protected speech; not different from Mrs. Boring’s selection of the play Independence in this case. It went on to hold that under Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the question of whether a public employee’s speech is constitutionally protected depends upon the public or private nature of such speech. It decided that the selection of the reading list by the teacher was not a matter of public concern and stated that:
*1488Although, the concept of academic freedom has been recognized in our jurisprudence, the doctrine has never conferred upon teachers the control of public school curricula. [footnote omitted]
890 F.2d at 800. And the Kirkland court recognized that Hazelwood held that public school officials, consistent with the First Amendment, could place reasonable restrictions upon the subject matter of a student published newspaper and also that schools are typically not public forums.
The court stated that “[w]e hold only that public school teachers are not free, under the first amendment, to arrogate control of curricula,” 890 F.2d at 802, and concluded as follows:
In summary, we conclude that Kirkland’s world history reading list does not present a matter of public concern and that this case presents nothing more than an ordinary employment dispute. Accordingly, Kirkland’s conduct in disregarding North-side’s administrative process does not constitute protected speech....
890 F.2d 802.
Since Mrs. Boring’s dispute with the principal, superintendent of schools and the school board is nothing more than an ordinary employment dispute, it does not constitute protected speech and has no First Amendment protection, I submit. Her case is indistinguishable from Kirkland’s.
B.
Even accepting, for argument only, the decision of the majority that Mrs. Boring’s selection of the play Independence was accorded some kind of First Amendment protection, it also erred in holding that the district court erred in holding that “the asserted restriction [of Mrs. Boring’s selection] necessarily related to legitimate pedagogical concerns.”
Pedagogical is defined as “2: of or relating to teaching or pedagogy. EDUCATIONAL.” Webster’s Third New International Dictionary, 1971, p. 1663.
There is no doubt at all that the selection of the play Independence was a part of the curriculum of Owen High School.
The makeup of the curriculum of Owen High School is by definition a legitimate pedagogical concern. Not only does logic dictate this conclusion, in only slightly different context the Eleventh Circuit has so held as a matter of law: “Since the purpose of a curricular program is by definition ‘pedagogical’_” Searcey v. Harris, 888 F.2d 1314, 1319 (11th Cir.1989).
If a play which is to be performed under the auspices of a school and which is a part of the curriculum of the school, is not by definition a legitimate pedagogical concern, I submit that nothing could be.
So, in my opinion, the majority erred in reversing the district court for its holding to that effect.
VII.
In a more general vein, I do not know of a more significant case to be decided in this court in my experience. The question is who is to set the curriculum, the teachers or the school authorities. Who is to first influence young minds?
From Plato to Burke, the greatest intellects of Western civilization have acknowledged the importance of the very subject at hand and have agreed on how it should be treated.
For a young person cannot judge what is allegorical and what is literal; anything that he receives into his mind at that age is likely to become indelible and unalterable; and therefore it is most important that the tales which the young first hear should be models of virtuous thoughts.
Plato’s Republic: Book II, Jowett Translation, Walter J. Black, Inc., 1942, p. 281.
The magistrate, who in favor of freedom thinks himself obliged to suffer all sorts of publications, is under a stricter duty than any other well to consider what sort of writers he shall authorize, and shall recommend by the strongest of all sanctions, that is, by public honors and rewards. He ought to be cautious how he recommends authors of mixed or ambiguous morality. He ought to be fearful of putting into the hands of youth writers indulgent to the *1489peculiarities of their own complexion, lest they should teach the humors of the professor, rather then the principles of the science.
Letter to a Member of the National Assembly (1791). IV, 23-34, found in The Philosophy of Edmund Burke, University of Michigan Press, 1960, p. 247.
No matter who sets the curriculum of a school, the younger the student the more especially my complaint should apply. That the curriculum of the school has an influence on young minds may not be exaggerated. The question is who shall set the curriculum, teachers who are responsible only in the most remote sense, or school authorities who are responsible in the sense that in the last analysis they must answer to political authorities because of the saving aspect of Art. IV, Sec. 4 of our Constitution which provides that each State must have a republican form of government. The argument may be that young minds are better in the hands of teachers who are regulated only by the First Amendment and by federal judges who are appointed during good behavior and are not responsible in any sense except by way of impeachment to the public which they serve. But I believe that is not so, young minds are better served by local school authorities with input from parents.
The Fifth Circuit recognized just this problem in Kirkland stating:
It does not matter, for purposes of influencing young minds, whether such power is exercised, to the exclusion of others, by the government or public school teachers.
890 F.2d at 801.
I agree with Justice Frankfurter, in concurrence, who related the four essential freedoms of a university, which should be no less obtained in public schools unless quite impracticable or contrary to law:
It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.
Sweezy v. New Hampshire, 354 U.S. 234, 255, 263-264, 77 S.Ct. 1203, 1214, 1218, 1 L.Ed.2d 1311 (1957) (quoting from a statement of a conference of senior scholars from the University of Cape Town and the University of the Witwatersrand, including A. v. d. S. Centlivres and Richard Feetham, as Chancellors of the respective universities [footnote omitted]).
In conclusion, I do not think the majority will take issue with the fact that someone has to set the curriculum for public schools. In my opinion, the curriculum should be set by the local administrative authorities and not the teachers. This is a business federal judges should keep out of absent a constitutional imperative not present here.
. Quotation mark omitted.
. Mrs. Boring's transfer may have been due to her damaging a brand new maple floor, but I will assume as she claims, it was because of her claim to be able to select Independence, despite the principal and superintendent of schools.
.The majority relies on Keefe v. Geanakos, 418 F.2d 359 (1st Cir.1969), for this proposition. But Keefe, of course, was pre-Hazelwood.
. The essential flaw in the majority’s decision is illustrated by the footnote on pages 15-16 of the slip opinion which states that it holds that "school administrators, rather than teachers, have final authority to select curriculum.” The majority decision, however, holds that "a teacher’s selection of a play for her class to perform constitutes such [First Amendment] expression." Op. 1478. That this latter statement is the holding of the majority, despite the denial in the footnote I have mentioned, is unequivocally shown by the last two words of the majority opinion: "REVERSED AND REMANDED.”
Much of such internal inconsistency is doubtless due to the majority’s application of any right a student may have to express himself in the classroom with respect to a curriculum made up by school authorities, to a teacher’s claimed right to define for the classroom the curriculum itself.