concurring:
I agree fully with the unassailable conclusion of the majority that the First Amendment does not require school boards to allow individual teachers in the Nation’s elementary and secondary public schools to determine the curriculum for their classrooms consistent with their own personal, political, and other views. Thus, I agree with the court’s rejection of the dissent’s position, see post at 375 (Motz, J., dissenting), that the Buncombe County Board of Education is required by the First Amendment to defend in federal court its decision to disallow Ms. Boring from producing a play on lesbianism in the classrooms of the County’s high school.
I also agree with the court’s application of the public employee speech cases of Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), in the resolution of this dispute. Whether or not it can be argued that the standard set forth in these cases is suitable in analyzing restrictions on teachers’ in-class noncurricular speech, the standard announced in these cases is eminently reasonable in analyzing restrictions on teachers’ in-class curricular speech — unless, of course, one mistakenly assumes, as indeed the dissent does, that every word of curricular speech uttered by a teacher within the classroom is, by definition, speech “as a citizen on a matter of public concern” within the in-tendment of Connick and Pickering. Cf. post at 378 (Motz, J., dissenting) (asserting that “Connick ... does not provide a workable formula for analyzing whether the First Amendment protects teacher’s in-class speech” because all in-class teacher speech is on matter of public concern, but without distinguishing between in-class curricular and in-class noncurricular teacher speech). Indeed, the analogy would seem to be pure between a teacher who, qua teacher, attempts to assert her own views through the curriculum- itself, and any other public employee who, qua employee, attempts to assert her personal views through the official policies and decisions of her office. Neither the question of whether a teacher has a First Amendment right when she speaks in the classroom generally, other than through the curriculum itself, nor the question of whether Connick applies in this quite different context, is before the court today, contrary to the belief of the dissent.
In reaching the conclusion that the Buncombe County Board of Education is constitutionally required to justify for Ms. Boring its decision not to permit production of the play she selected, -the dissent relies on the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), but selectively quotes from the Court’s opinion in that ease so as to leave the impression that Hazelwood dealt with a teacher’s First Amendment right to express herself through the curriculum itself, rather than with a student’s First Amendment right to speak within a curricular setting. Thus, the dissent states that,
in Hazelwood the Court held that school administrators’ curriculum choices did not offend the First Amendment “so long as their actions are reasonably related to legitimate pedagogical concerns.” Indeed, the Court went on to recognize that, on occasion a particular curriculum decision may have “no valid educational purpose” and that in such an instance “the First Amendment is so directly and sharply implicate[d] as to require judicial intervention!;;]”
post at 376, whereas the Court actually stated:
[WJe hold that educators do not offend the First Amendment by exercising editorial control over the style and content of stu*373dent speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns..... It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so “directly and sharply implicate[d] as to require judicial intervention to protect students’ constitutional rights.”
484 U.S. at 273, 108 S.Ct. at 571 (footnote and citations omitted; emphasis added). From its perceived need to omit from the Hazelwood passages upon which it explicitly relies and partially quotes, all references within those passages — even within the holding itself — to the fact that the Court was concerned in that case only with student speech, it is clear that the dissent recognizes that Hazelwood offers no support for its position in this ease.
Notwithstanding its obvious recognition.óf the inapplicability of Hazelwood, the dissent would nevertheless import wholesale Hazel-wood’s test for evaluating restrictions on student speech within curricular activities into the entirely different context of teacher speech through the curriculum itself. That is, not only does the dissent deny, through simple omission of the relevant portions of text from the Court’s opinion, that Hazel-wood was concerned only with student speech; it fails to recognize the elementary difference between teacher in-class speech which is curricular, and teacher in-class speech which is noneurricular, because it assumes that every, word uttered by a teacher in a classroom is curriculum. In the latter context of teacher in-class noneurricular speech, the teacher assuredly enjoys some First Amendment protection. In the former context of teacher in-class curricular speech, the teacher equally assuredly does not.
Of course, we are presented in this case not with student speech within a curricular activity (such as in Hazelwood), but- rather, with teacher or employee speech literally through the curriculum itself. The differences are plain — the ultimate question for our resolution being whether a teacher has a constitutional right to define, at least in part-, the school’s curriculum, over the informed judgments of both school boards and parents. As noted, mistakenly applying Hazelwood in the first instance, and then, in its alternative reasoning, mistakenly assuming that every word spoken in the classroom by a teacher is a matter of public concern within the meaning of Connick and Pickering, the dissent would hold that every teacher has such a right. Today, however, the court properly concludes that she does not. Of course, were it otherwise — that is, were every public school teacher in America to have the constitutional right to design (even in part) the content of his or her individual classes, as the dissent would have it — the Nation’s school boards would be without even the most basic authority to implement a uniform curriculum and schools would become mere instruments for the advancement of the individual and collective social agendas of their teachers.
Rhetorically, the dissent attempts to minimize the radicalization of the educational process that would follow upon, its proposed holding, by assuring that school officials “must and [would] have final authority over curriculum decisions,” and that all that would be required is the mere articulation by the school board of any “legitimate pedagogical concern.” Even if these observations as to the dissent’s proposed holding were true, the requirement that school systems across the country make their curriculum decisions in anticipation of litigation, and then engage in the time-consuming processes of discovery, pretrial litigation, and trial in federal court to defend as “legitimately pedagogical” their individual curriculum decisions, would itself represent a crushing burden, not to mention a surrender to unelected federal judges of the “final authority over curriculum decisions” that is properly that of school boards and parents.
But-one should be under no illusions that the particular- requirement of “legitimate pedagogy” that the dissent has in mind could ever be so easily satisfied or that, in reality, the dissent contemplates final decisionmaking authority for curriculum resting with the Nation’s schoolboards. The indisputable subtext of the dissent, which cquld hardly go unnoticed, is that “legitimate” pedagogy will *374be not what the parents and schoolboards decide it should but, rather, what the judges say it will be. If any confirmation of this is necessary, one need look no further than to Judge Hamilton’s separate opinion, in which he has already concluded, without even so much as an allegation to this effect by the plaintiff, that the defendants, “all for the sole purpose of shielding the principal and the Board from the wrath of the public outcry,” “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.” Post at 374 (Hamilton, J., dissenting).
Judge Wilkins and Judge Williams join in this concurrence.