# Seyfried v. Walton/Opinion of the Court

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* Concurring Opinion Rosenn
[p215] OPINION OF THE COURT
The question presented is whether a public school superintendent's decision to cancel a high school dramatic production because of its sexual theme violated the students' first amendment right of expression. Plaintiffs, parents of three students in the play, sued the school district, the school board, and the district superintendent, seeking compensatory and equitable relief under 42 U.S.C. § 1983. The district court, sitting without a jury, held that the school superintendent's decision to cancel the production as inappropriate for school sponsorship was no different from other administrative decisions involving allocation of educational resources and that the cancellation did not offend the students' first amendment rights. We accept the reasoning given by the district court and we will affirm for the reasons set forth in Judge Stapleton's opinion. Seyfried v. Walton, 512 F. Supp. 235 (D.Del.1981).

## I.

Because the facts underlying this controversy were set out in detail by the district court, our recitation will be abbreviated. Caesar Rodney High School, located in Dover, Delaware, sponsors autumn and spring theatrical productions each year. In December 1980, the director of the spring production, an English teacher at the school, selected the musical "Pippin" for presentation the following spring. Because the play contained certain sexually explicit scenes, the director consulted the assistant principal before reaching a final decision. After the director edited the script, she and the assistant principal agreed that the revised scenes, although still sexually suggestive, were appropriate for a high school production.
In March 1981, shortly after rehearsals for the spring production had begun, the father of a "Pippin" cast member complained to his brother, the president of the school board, that the play mocked religion. The board president directed the district superintendent to look into the matter. After reviewing the edited script, the superintendent determined that the play did not mock religion, but that it was inappropriate for a public high school because of its sexual [p216] content. He directed the principal to stop production of the play. After hearing the views of interested parents, the school board refused to overturn the superintendent's decision. As a result, the school did not present a spring play in 1981.
Parents of three members of the "Pippin" cast and crew then filed a civil rights action under 42 U.S.C. § 1983, claiming that the students' first amendment rights of expression had been unconstitutionally abridged. After a two-day trial, the district court entered judgment in favor of the defendants. Plaintiffs appeal.

## II.=

Appellants' principle contention is that the students of the "Pippin" cast and crew had a first amendment right to produce the play. Although we agree that, in general, dramatic expression is "speech" for purposes of the first amendment, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S.C.t. 1239, 1245-46, 43 L. Ed. 2d 448 (1975), we also agree with the district court that the decision to cancel the production of "Pippin" in these circumstances did not infringe on the students' constitutional rights.
In his well reasoned opinion, Judge Stapleton noted that a school community "exists for a specialized purpose-the education of young people," including the communication of both knowledge and social values. 512 F. Supp. at 237. The first amendment, he concluded, must therefore be "applied in light of the special characteristics of the school environment…." Id. (quoting Tinker v. Des Moines School District, 393 U.S. 503, 506, 89 S.C.t. 733, 736, 21 L. Ed. 2d 731 (1969)).
We believe that the district court properly distinguished student newspapers and other "non-program related expressions of student opinion" from school-sponsored theatrical productions. 512 F. Supp. at 238-39. The critical factor in this case is the relationship of the play to the school curriculum. As found by the district court, both the staff and the administration view the spring production at Caesar Rodney as "an integral part of the school's educational program." Participation in the play, though voluntary, was considered a part of the curriculum in the theater arts. 512 F. Supp. at 238 & n.5. On review of the record we conclude that this finding is not clearly erroneous. Krasnov v. Dinan, 465 F.2d 1298, 1302-03 (3d Cir. 1972). Viewed in this light,
   the selection of the artistic work to be given as the spring production does not differ in principle from the selection of course curriculum, a process which courts have traditionally left to the expertise of educators. Just as a student has no First Amendment right to study a particular aspect or period of history in his or her senior history course, he or she has no First Amendment right to participate in the production of a particular dramatic work or version thereof.
Id. at 238-39.
The district court also noted the likelihood that the school's sponsorship of a play would be viewed as an endorsement of the ideas it contained. A school has an important interest in avoiding the impression that it has endorsed a viewpoint at variance with its educational program. HN1Go to the description of this Headnote.The district court cautioned that administrators may not so chill the school's atmosphere for student and teacher expression that they cast "a pall of orthodoxy" over the school community, Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.C.t. 675, 683-84, 17 L. Ed. 2d 629 (1967), but it found no such danger here. 512 F. Supp. at 239. The court found that no student was prohibited from expressing his views on any subject; no student was prohibited from reading the script, an unedited version of which remains in the school library; and no one was punished or reprimanded for any expression of ideas. In light of these facts, the court could find no reasonable threat of a chilling effect on the free exchange of ideas within the school community. These findings are amply supported by the record.
[p217] We agree with the district court that those responsible for directing a school's educational program must be allowed to decide how its limited resources can be best used to achieve the goals of educating and socializing its students. "Limitations of time and resources … dictate that choices be made…. Since the objective of the process is the "inculcation of both knowledge and social values' in young people, these decisions as to what will be taught will necessarily involve an acceptance or preference of some values over others." 512 F. Supp. at 237 (quoting Pico v. Board of Education, 638 F.2d 404, 432 (2d Cir. 1980) (Newman, J., concurring), cert. granted, 454 U.S. 891, 102 S.C.t. 385, 70 L. Ed. 2d 205 (1981).
Because of the burden of responsibility given to school administrators, courts are reluctant to interfere with the operation of our school systems. As the Supreme Court has observed:HN2Go to the description of this Headnote.
   By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.
Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.C.t. 266, 270, 21 L. Ed. 2d 228 (1968). We agree with the district court that the conflict here does not "directly and sharply implicate" the first amendment rights of the students. We hold, therefore, that the court properly entered judgment for the defendants.

## III.

The judgment of the district court will be affirmed.

## Footnotes

* ↑ We have considered the remaining arguments raised by appellants and we conclude that they are without merit. Because of our disposition of this case we need not consider the parties' contentions on the issue of immunity from damages.