APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil No. 81-0117)
Before Aldisert, Rosenn and Weis, Circuit Judges.
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).
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 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.
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. Ct. 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. Ct. 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 ...