Bd. Healthy burden. 1968), modified, 425 F.2d 469 (D.C. 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. Opinion. Similarly, in Tinker, the uncontroverted evidence showed that the students who wore the black armbands were engaged in an expression of opposition to the Vietnam war, which the Court concluded was akin to "pure speech." The evidence in Wood established that the teachers had been smoking marijuana with two fifteen-year-old students in the teachers' apartment. 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, Sec. Having considered the entire record, including the viewing of the movie, and in holding that the district court's findings of fact are clearly erroneous, we are left with a "definite and firm conviction that . The board viewed the movie once in its entirety and once as it had been edited in the classroom. He did so by attempting to cover the 25" screen with an 8 1/2" by 11" letter-sized file folder. 06-1215(ESH). Sec. Fowler rented the video tape at a video store in Danville, Kentucky. . I agree with Judge Milburn's decision that the school board's termination of Ms. Fowler's teaching contract did not violate her First Amendment right of free expression but write separately because I reach this result by a different route. She made no attempt at any time to explain the meaning of the movie or to use it as an educational tool. It is also undisputed that she left the room on several occasions while the film was being shown. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it." "Consciously or otherwise, teachers . 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." 2730 (citation omitted). In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. See, e.g., Martin v. Parrish, 805 F.2d 583 (5th Cir. See, e.g., Stern v. Shouldice, 706 F.2d 742 (6th Cir. However, Fowler did not preview the movie before having it shown to her morning class because the store did not have a tape compatible with her own VCR and because she did not have time to make other arrangements to preview the movie. Ms. Fowler's after the fact rationalizations for having shown the film cannot alter the fact that she used poor judgment and should not shield her from the consequences. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. See Tinker, 393 U.S. at 506, 89 S.Ct. Law Rep. 1011 Jacqueline FOWLER, Plaintiff-Appellee, Cross-Appellant, v. The BOARD OF EDUCATION OF LINCOLN COUNTY, KENTUCKY; Joseph G. Blair, Individually and As Superintendent of the Lincoln County Schools; Lloyd McGuffey; Jimmy Cooper; Ivan Singleton; Tom Blankenship; and Paul Playforth, Individually and Each in His Official Capacities, Respectively, As a Member of the Board of Education of Lincoln County, Kentucky, Defendants- Appellants, Cross-Appellees. at 1648 (quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C. Cir. 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. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. Sec. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. At the administrative hearing, several students testified that they saw no nudity. Only three justices agreed that students possess a constitutionally protected entitlement to access to particular books in the school's library. The Court in the recent case of Bethel School Dist. Fraser, 106 S.Ct. Mt. 2537, 91 L.Ed.2d 249 (1986); Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1113 (5th Cir. There is conflicting testimony as to whether, or how much, nudity was seen by the students. Joint Appendix at 137. Joint Appendix at 120-22. Subscribers are able to see the revised versions of legislation with amendments. 3159, 3164, 92 L.Ed.2d 549 (1986) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77, 99 S.Ct. Joint Appendix at 83-84. Healthy, 429 U.S. at 287, 97 S.Ct. In the present case, because plaintiff's conduct in having the movie shown cannot be considered expressive or communicative, under the circumstances presented, the protection of the First Amendment is not implicated. Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. v. Pico, 457 U.S. 853, 102 S.Ct. The board then retired into executive session. Mt. In addition to the sexual aspects of the movie, there is a great deal of violence. This lack of love is the figurative "wall" shown in the movie. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. at 3165. School officials testified that they objected to the movie because it promoted values which were described as immoral, antieducation, antifamily, antijudiciary, and antipolice. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. Finally, we must determine whether plaintiff's conduct constituted "conduct unbecoming a teacher" within the meaning of Ky.Rev.Stat. [54] JOHN W. PECK, Senior Circuit Judge, concurring. Decided June 1, 1987. Cf. Citations are also linked in the body of the Featured Case. 2727, 2729-31, 41 L.Ed.2d 842 (1974) (per curiam) (display of flag with peace symbol attached was expressive conduct entitled to protection under First Amendment); Tinker, 393 U.S. at 505, 89 S.Ct. I would also question the notion that an explanation from the teacher was necessary before the class was likely to understand the themes and viewpoints contained in this film. Emergency Coalition v. U.S. Dept. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. Spence, 418 U.S. at 410, 94 S.Ct. Ms. Francisca Montoya is a lifelong resident of Maricopa County and advocate of public education. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. In so finding we are not troubled by the Seventh Circuit's decisions respecting a school's attempted regulation of hair length. 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. In examining the motivation of the school board, while the school board clearly expressed displeasure with the anti-establishment focus of the film, the board also found the method of the film to be highly inappropriate for its students. 746 (1948), and Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. See generally Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. . The court noted that "[t]he evidence indicates that there was serious misconduct of an immoral and criminal nature and a direct connection between the misconduct and the teachers' work." of Treasury, Civil Action No. 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. A number of courts have rejected vagueness challenges when an employee's conduct clearly falls within a statutory or regulatory prohibition. at 177, 94 S.Ct. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. He did so by attempting to cover the 25"' screen with an 8 1/2"' by 11"' letter-sized file folder. Moreover, the surrounding circumstances in the present case indicate that there was little likelihood "that the message would be understood by those who viewed it." either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. Healthy, 429 U.S. at 287, 97 S.Ct. 1589, 1594-95, 60 L.Ed.2d 49 (1979)). The justices, without comment, let stand a ruling that the teachers free- expression rights were not violated. She testified that she would show an edited. The basis for this action was that she had an "R" rated movie, Pink Floyd--The Wall, shown to her high school students on the last day of the 1983-84 school year. Opinion of Judge Peck at p. 668. 1969); Dean v. Timpson Independent School District, 486 F. Supp. You also get a useful overview of how the case was received. Id., at 862, 869, 102 S.Ct. Trial Transcript Vol. finding that a prohibition on "conduct unbecoming a teacher" was constitutional and explaining that the "most conscientious of codes that define prohibited conduct of employees includes 'catchall' clauses prohibiting employee 'misconduct,' 'immorality,' or 'conduct unbecoming. CASE TITLE:Fowler v. Board of Education of Lincoln County Kentucky CITATION: Fowler v. Board of Education of Lincoln County, 819 F.2d 657 (Sixth Circuit, 1987) FACTSA tenured teacher's employment was ended because she had an "R" rated movie, Pink Floyd--The Wall,shown to her high school students on the last day of the school year. The Court in Mt. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. denied, 411 U.S. 932, 93 S.Ct. Id., at 1193. Another scene shows children being fed into a giant sausage machine. Circuit Court of Appeals voted 2-1 last June to overturn the trial judge and uphold the firing. For similar reasons, plaintiff's reliance on Pratt v. Independent School District No. 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. In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. Another shows the protagonist cutting his chest with a razor. Decided: October 31, 1996 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. Sterling, Ky., for defendants-appellants, cross-appellees. 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. 215, 221, 97 L.Ed. 08-10557. Moreover, even these three justices explicitly noted that the decision regarding this right did not extend to the classroom. Boring v. Buncombe County Board of Education (136 E 3 d 364 [1998]), the Fourth Circuit Court, citing the 1988 decision Hazelwood v. Kulhmeir (484 U.S. 260), found Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969), has acknowledged that students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. Ms. Fowler, a former teacher of the year at the school who taught civics and Latin, said she did not watch the movie herself before showing it to the students. 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. No. Bethel School District No. . Because the intent to express was coupled with a great likelihood that the message would be understood, the Court concluded that the conduct was entitled to protection under the First Amendment. When Fowler had the movie shown on the morning of May 31, 1984, she instructed Charles Bailey, the fifteen-year-old student who had seen the movie, to edit out any parts that were unsuitable for viewing at school. The single most important element of this inculcative process is the teacher. The board then retired into executive session. 2799, 73 L.Ed.2d 435 (1982). The fundamental principles of due process are violated only when "a statute . District Office Staff; Three Year Strategic Plan; Supergram; District Calendar; FUSD Annual Calendar; Student Achievement; Board of Trustees; Accessibility Information As Corrected November 6, 1986. 85-5815, 85-5835. at 2805-06, 2809. Joint Appendix at 308-09. This segment of the film was shown in the morning session. 1953, 1957, 32 L.Ed.2d 584 (1972). at 576. . at 1594-95, and Tinker, 393 U.S. at 508, 89 S.Ct. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. . Where a plaintiff can show that her constitutionally-protected conduct was a "substantial" or "motivating" factor in the discharge decision, the employer must prove "by a preponderance of the evidence that it would have reached the same decision as to . 418 U.S. at 409, 94 S.Ct. The dissent relies upon Schad v. Mt. Another shows the protagonist cutting his chest with a razor. Id., at 840. United States District Court (Eastern District of Michigan). She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. Id., at 1116. 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. 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. Defendants, The Board of Education of Lincoln County, Kentucky, individual board members, and the Superintendent of the Lincoln County Schools, appeal from the judgment of the district court awarding reinstatement and damages to plaintiff Jacqueline Fowler on the ground that her employment was terminated in violation of her First Amendment rights. Trial Transcript Vol. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. Connect with the definitive source for global and local news. 1628 (1943) (flag salute), are inapposite because they involve examples of symbolic expression, not verbal communication, and articulate guidelines for determining what symbolic acts may constitute expression. San Francisco Unified School District and County Office of Education Board Policy 6161.11 Supplementary Instructional Materials . Bd. at 2810. of Educ. United States Court of Appeals (6th Circuit), Before MERRITT and MILBURN, Circuit Judges, and PECK; MILBURN; JOHN W. PECK; MERRITT. 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.". That a teacher does have First Amendment protection under certain circumstances cannot be denied. demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. of Educ.. (opinion of Powell, J.) Advanced A.I. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual." re-employment even in the absence of the protected conduct." See also In re Matter of Certain Complaints Under Investigation, 783 F.2d 1488, 1512-13 (11th Cir.) Joint Appendix at 242-46. ", Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing. The district court concluded that Fowler was not insubordinate because she did not violate an established rule or regulation, and also found that plaintiff's due process rights were not violated by the procedures utilized at the administrative hearing. The film describes the life of a rock star, including his childhood, failed marriage, drug abuse and ruined career. However, I conclude that Fowler's conduct in having the movie shown under the circumstances present here did not constitute expression protected by the First Amendment. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. Defendants, The Board of Education of Lincoln County, Kentucky, individual board members, and the Superintendent of the Lincoln County Schools, appeal from the judgment of the district court awarding reinstatement and damages to plaintiff Jacqueline Fowler on the ground that her employment was terminated in violation of her First Amendment rights. 2176, 68 L.Ed.2d 671 (1981), and Zacchini v. Scripps-Howard Broadcasting casting Co., 433 U.S. 562, 97 S.Ct. I believe a teacher should be similarly protected by the First Amendment whether she is participating in an instructional or non-instructional day. The board viewed the movie once in its entirety and once as it had been edited in the classroom. I do not believe an argument based on intertwining can be used to suppress protected speech; vulgarity should not be allowed to subsume that which is protected. 5//28he tdught high school % "dtin dnd ivics. District Court Opinion at 6. In the present case, we conclude that plaintiff's conduct, although not illegal, constituted serious misconduct. Consequently, the focus of our inquiry is whether Fowler's conduct was constitutionally protected. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. We do not intimate that a teacher is entitled to the protection of the First Amendment only when teaching. However, she stated that she believed Charles Bailey when he told her that he continued to edit while she was gone. 2537, 91 L.Ed.2d 249 (1986). The district court concluded that Fowler's conduct was protected by the First Amendment, and that she was discharged for exercising her constitutionally protected rights. Finally, the district court concluded that K.R.S. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. On its distinctive facts, Fowler v. Board of Education Lincoln County, Kentucky' is almost ideally suited as a vehicle for reex- amining some of the "deeper" issues associated with in-school speech of public high school teachers in particular and with free speech law in general. Plaintiff cross-appeals on the ground that K.R.S. at 736 (wearing black armband was conduct akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. Plaintiff Fowler received her termination notice on or about June 19, 1984. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world. Healthy. United States Courts of Appeals. 532, 535-36, 75 L.Ed. 95-2593. 26 v. Pico, 457 U.S. 853, 102 S.Ct. (same); Fowler v. Board of Educ. Breen v. Kahl, 419 F.2d 1034 (1969); Crews v. Cloncs, 432 F.2d 1259 (1970). Id., at 863-69, 102 S.Ct. 2. He did so by attempting to cover the 25"' screen with an 8 1/2"' by 11"' letter-sized file folder. 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 . The district court found that the movie "contains a very limited amount of material which is sexually suggestive," that the movie does not contain "any `simulation' of a sexual act," and that "any scenes involving nudity or suggestive conduct were edited from the view of students" during both showings. Fowler testified that she left the classroom on several occasions while the movie was being shown. Joint Appendix at 127. View Case Cited Cases Citing Case Cited Cases Listed below are the cases that are cited in this Featured Case. One student testified that she saw "glimpses" of nudity, but "nothing really offending." Because we conclude that plaintiff's discharge may be upheld under the charge of conduct unbecoming a teacher, we need not reach this issue. at 2730. 1178, 87 L.Ed. 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. 1977) ("immorality" standard not vague as applied to teacher discharged for making sexual advances toward his students). It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. Joint Appendix at 321. 1986); Zykan v. Warsaw Community School Corp., 631 F.2d 1300 (7th Cir. Subscribers are able to see a visualisation of a case and its relationships to other cases. at 573-74. 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. He expresses the further view that there was "little likelihood that the message would be understood by those who viewed it," id., at 411, 94 S.Ct. October 16, 1986. Id. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. I would hold, rather, that the district court properly used the Mt. While this is a general principle of law espoused by the Supreme Court on several occasions, the Court has also indicated that in determining whether a given type of entertainment is protected by the First Amendment, it will look to the kind of entertainment involved and the appropriateness of the entertainment under the circumstances such as the time and place where offered. I at 101. When Fowler had the movie shown on the morning of May 31, 1984, she instructed Charles Bailey, the fifteen-year-old student who had seen the movie, to edit out any parts that were unsuitable for viewing at school. It is undisputed that Fowler left the room several times while the movie was being shown, and that she was posting grades during the time she was present in the classroom. Another shows police brutality. Bd. What one judge sees as "gross and bizarre," another may find, as did District Judge Scott Reed below, mild and not very "sexually suggestive.". Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. 3273, 91 L.Ed.2d 563 (1986); Smith v. Price, 616 F.2d 1371, 1379 n. 10 (5th Cir. 2294, 2299, 33 L.Ed.2d 222 (1972); 511 Detroit Street, Inc. v. Kelley, 807 F.2d 1293, 1295 (6th Cir. The movie here seems to me to present a message similar to that expounded by Dr. Spock: abuse of sex and drugs as well as various forms of mental instability and anti-social conduct are associated with an overly authoritarian society. Dist. at 287, 97 S.Ct. Pink Floyd is the name of a popular rock group. Board of Education, mt. The district court concluded that Fowler was not insubordinate because she did not violate an established rule or regulation, and also found that plaintiff's due process rights were not violated by the procedures utilized at the administrative hearing. Plaintiff cross-appeals from the holding that K.R.S. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. v. Barnette, 319 U.S. 624, 63 S.Ct. 525, 542, 92 L.Ed. On July 10, 1984, plaintiff Fowler appeared with counsel at the administrative hearing. Moreover, in Spence. Fowler v. Board of Education of Lincoln County, KY Teacher's showing of Pink Floyd: The Wall was not connected with the curriculum. Although not illegal, constituted serious misconduct attempt at any time to explain the of. No attempt at any time to explain the meaning of Ky.Rev.Stat the factual findings made in support of her were! To the classroom whether she is participating in an Instructional or non-instructional day she was gone 1948 ) and! 862, 869, 102 S.Ct and citations Vincent found, 575, 105 S.Ct Cited Cases Listed below the... Office of education Board Policy 6161.11 Supplementary Instructional Materials teacher is entitled to the protection of ages... 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