Spence, 418 U.S. at 411, 94 S.Ct. at p. 664. 487, 78 L.Ed.2d 683 (1983). On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. Board of Education of Lincoln County Date: 1987 Level or Type of Court: United States Court of Appeals, Sixth Circuit Facts: Defendants, Board of Education of Lincoln County, Kentucky, individual board members, and the Superintendent of the Lincoln County Schools Plaintiff, Jacqueline Fowler tenured teacher employed by Lincoln County school Cir. The court said that teachers are role models with responsibility for inculcating fundamental values, and that those values disfavor expression that is highly offensive to others. Accordingly, for the reasons stated, the judgment of the district court is VACATED, and this cause is DISMISSED. Andrew Tony Fowler Overview. (Education Code 60605.86- . 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. I at 101. School officials testified that they objected to the movie because it promoted values which were described as immoral, antieducation, antifamily, antijudiciary, and antipolice. Such conduct, under the circumstances involved, clearly is not "speech" in the traditional sense of the expression of ideas through use of the spoken or written word. a statute that required state employees, including teachers, to take a loyalty oath forswearing communism); Fowler v. Bd. Id., at 1116. The board then retired into executive session. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. The students had asked to see the film. It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. In the context of statutory provisions governing employee discipline, the Supreme Court has recognized the inherent difficulty in drawing statutes which are broad enough to cover a wide range of conduct, yet narrow enough to give fair warning. tion for showing R-rated films, as evidenced by Fowler v. Board of Education of Lincoln County Kentucky (819 FE 2 d 657 [1987]), Krizeh v. Cicero-Stichley TP. The cases just discussed demonstrate that conduct is protected by the First Amendment only when it is expressive or communicative in nature. The justices, without comment, let stand a ruling that the teacher's free- expression rights were not violated. The school board was also motivated by the poor judgment used by the teacher in not previewing an R-rated film and in the cavalier manner in which she allowed the film to be shown and "edited" by a student. One particularly controversial segment of scenes is animated in which flowers appear on the screen, are transformed into the shape of male and female sex organs and then engage in an act of intercourse. As those cases recognize, the First . owler wds fired in # uly 1984 dnd dppedled on the ground thdt her employment wds termindted in violdtion of her irst mendment rights dnd conduct unbecoming d . 1987 Fowler v. Board of Education of Lincoln County , 819 F.2d 657 (6th Cir.). Id., at 839. For similar reasons, plaintiff's reliance on Pratt v. Independent School District No. Another shows the protagonist cutting his chest with a razor. Sec. The district court concluded that plaintiff was not insubordinate because she did not violate any established rule or regulation, nor did she refuse to obey the directions of her superiors. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 525, 542, 92 L.Ed. Plaintiff cross-appeals from the holding that K.R.S. applying Arnett and Wishart in upholding dismissal standard of "conduct unbecoming a teacher", Fowler v. Board of Education of Lincoln County. 1552, 51 L.Ed.2d 775 (1977); diLeo v. Greenfield, 541 F.2d 949 (2d Cir. To the extent that the district court's finding of fact number 34 may be interpreted as a finding that the defendants objected to the film only on an ideological level, the finding is clearly erroneous. Joint Appendix at 83-84. 161.790(1)(b) was not vague or overbroad, apparently for the reason that, because Fowler's conduct was protected by the First Amendment, such conduct "as a matter of fact and law did not constitute conduct unbecoming a teacher." A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. 26 v. Pico, 457 U.S. 853, 102 S.Ct. The film describes the life of a rock star, including his childhood, failed marriage, drug abuse and ruined career. Id. One scene involves a bloody battlefield. Therefore, I disagree with the distinction between instruction and entertainment drawn by Judge Milburn and the conflation of vulgarity and anti-establishment ideas set forth by Judge Peck. In order to defend itself against such a claim, the government must establish by a preponderance of the evidence that the decision to terminate would have been made in the absence of the exercise of the constitutionally protected right. Joint Appendix at 120-22. Id., at 862, 869, 102 S.Ct. board could dismiss a tenured high school teacher with 14 years of experience for insubordination and conduct unbecoming an educator for showing Pink Floyd: The Wall on the last day of the academic year considered a noninstructional day (Fowler v. Board of Education of Lincoln County, Ky. 1987a, 1987b). Healthy standard, a public employee establishes a prima facie case of a constitutional violation if she shows that she was engaged in protected activity, and that such activity was a substantial or motivating factor in the decision to terminate her employment. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. 1987) 105 Geller v. Markham, 635 F.2d 1027 (1980) 106 Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979) 108 Knight v. Board of Regents of University of State of New York, Id., at 839-40. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. 1, Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. She testified that she would show an edited. See also Fraser, 106 S.Ct. There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. Furthermore, since this was a "free day" for the students, no departure from a board-mandated curriculum occurred. No. 106 S.Ct. at 3165 (quoting Ambach, 441 U.S. at 76-77, 99 S.Ct. 397 (M.D.Ala. (same); Fowler v. Board of Educ. See, e.g., Stern v. Shouldice, 706 F.2d 742 (6th Cir. The existence of such a "right to know" was considered by the Supreme Court in Board of Education, Island Trees Union Free School District No. Plaintiff cross-appeals from the holding that K.R.S. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. Id., at 583. Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the worlds leading publishers. The mere fact that at some point she may have developed an approval of the content of the movie is not, standing alone, a sufficient basis for the conclusion that her conduct in having the movie shown was a form of expression entitled to protection under the First Amendment. For example, in Frison v. Franklin County Board of Education, 596 F.2d 1192 (4th Cir. 1976), for the proposition that students in a public school have a constitutionally protected right "to receive information which they and their teachers desire them to have." Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. The Supreme Court in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. Plaintiff cross-appeals on the ground that K.R.S. Mt. 1969); Dean v. Timpson Independent School District, 486 F. Supp. Joint Appendix at 308-09. Healthy case as precedent to decide whether the school board in that case acted properly in removing books from the school library. 2537, 91 L.Ed.2d 249 (1986). Sec. Id. I at 108-09. On its distinctive facts, Fowler v. Board of Education of Lincoln County, Kentucky' is almost ideally suited as a vehicle for reexamining some of the "deeper" issues associated with the in-school speech of public high school teachers in particular and with free speech law in general. On the list of instructional materials approved by the Tulare County Board of Education (search at www.erslibrary.org), or District Court Opinion at 23. 2176, 2181, 68 L.Ed.2d 671 (1981) (entertainment protected same as political or ideological speech); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578, 97 S.Ct. Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge. of Educ. 1968), modified, 425 F.2d 469 (D.C. 352, 356 (M.D.Ala. See Schad v. Mt. Plaintiff argues that Ky.Rev.Stat. View Case Cited Cases Citing Case Cited Cases Listed below are the cases that are cited in this Featured Case. Id., at 410, 94 S.Ct. Even when the actor does intend to communicate a message by his conduct, a governmental interest in regulating the nonspeech aspect of such conduct may justify incidental restrictions on the speech aspect as well. Trial Transcript Vol. Pink Floyd is the name of a popular rock group. The District Court held that the school board failed to carry this Mt. Because some parts of the film are animated, they are susceptible to varying interpretations. ), cert. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S.Ct. of Educ.. (opinion of Powell, J.) 322 (1926). Opinion. She also said she would show an edited version of the movie again if she had the opportunity to explain it to the students. Dist. 1987). 1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir. McCollum, a 13-year employee of the Laurel County Board of Education was engaged as a homebound teacher on a continuing service contract. (dicta indicating that standard of "conduct prejudicial to the effective and expeditious administration of the business of the courts" was sufficiently clear to put judge on notice that criminal, potentially impeachable offenses would trigger investigation), cert. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. See also Ambach, 441 U.S. at 76-77, 99 S.Ct. After the movie was viewed by the superintendent and members of the Lincoln County Board of Education, proceedings were instituted to terminate Fowler's contract. 1980); Russo v. Central School District No. Having considered the entire record, including the viewing of the movie, which we describe as gross and bizarre and containing material completely unsuitable for viewing by a classroom of students aged fourteen to seventeen, we conclude that such conduct falls within the concept of conduct unbecoming a teacher under Kentucky law. 1986); Zykan v. Warsaw Community School Corp., 631 F.2d 1300 (7th Cir. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. Subscribers are able to see any amendments made to the case. See, e.g., Martin v. Parrish, 805 F.2d 583 (5th Cir. She argued that the statute governing her demotion, which required teachers to maintain discipline and encourage morality, failed to give adequate notice that her conduct was a ground for discipline. Id., at 840. Plaintiff Fowler received her termination notice on or about June 19, 1984. In the process, she abdicated her function as an educator. There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. Connect with the definitive source for global and local news. Advanced A.I. 161.790(1)(b) is not unconstitutionally vague. at 2730. This court, in my opinion, should not offer an advisory opinion as to what constitutes an intent to communicate and how much knowledge of the content of a presentation is needed before it can be embraced as one's own expression. School officials testified that they objected to the movie because it promoted values which were described as immoral, antieducation, antifamily, antijudiciary, and antipolice. Joint Appendix at 137. . Subscribers are able to see a list of all the cited cases and legislation of a document. "Consciously or otherwise, teachers . 1780, 29 L.Ed.2d 284 (1971), the Supreme Court held constitutionally protected the act of wearing a jacket bearing the words "!?X! Rather, the proper focus of our inquiry is whether Fowler was engaged in expressive activity protected by the First Amendment, and nothing in the record would indicate that she was so engaged. Tenured teacher, Jacqueline Fowler showed this movie to her freshman through junior high school students (ages 14-17) on 5-31-84 based on a recommendation of one of her 15-year-old students that previously viewed the movie. Healthy. Id., at 1193. O'Brien, 391 U.S. at 376, 88 S.Ct. There is no support for the proposition nor does the school board argue that a teacher's academic freedom or a student's right to hear may be abridged simply because a school board dislikes the content of the protected speech. What one judge sees as "gross and bizarre," another may find, as did District Judge Scott Reed below, mild and not very "sexually suggestive.". The plurality opinion of Pico used the Mt. 733, 736, 21 L.Ed.2d 731 (1969). Many courts have recognized that a teacher's First Amendment rights encompass the notion of "academic freedom" to exercise professional judgment in selecting topics and materials for use in the course of the educational process. One particularly controversial segment of scenes is animated in which flowers appear on the screen, are transformed into the shape of male and female sex organs and then engage in an act of intercourse. Jacqueline Fowler had worked in the Lincoln County, Ky., school system for 14 years when she was fired in July 1984 for insubordination and conduct unbecoming a teacher. The fundamental principles of due process are violated only when "a statute . The court went on to view this conduct in light of the purpose for teacher tenure. But whatever the meaning of the movie, however good or bad it may be, my main concern is that the holdings of both Judge Milburn and Judge Peck are in error. . Evans-Marshall v. Board of Educ. Healthy standard to decide whether Ms. Fowler's discharge violated the First Amendment, but erred in its finding that, but for Ms. Fowler's constitutionally protected activity of communicating various ideas and political thoughts to her students, she would not have been fired. Other segments involving a violent rape, nudity, a suggestion of oral sex, and a naked woman and naked man in bed engaging in foreplay and intercourse were also shown in the morning. Following her termination, plaintiff Fowler initiated her action in the district court alleging that her First and Fourteenth Amendment rights were violated by her discharge, and that the Kentucky statutes forming the basis for her discharge were unconstitutionally vague or overbroad. Plaintiff cross-appeals on the ground that K.R.S. The notice advised her that a hearing would be held on July 10, 1984, and she subsequently advised the board of her intention to appear at the hearing and contest the charges. 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