The plurality opinion of Pico used the Mt. The fundamental principles of due process are violated only when "a statute . San Francisco Unified School District and County Office of Education Board Policy 6161.11 Supplementary Instructional Materials . As those cases recognize, the First . 532, 535-36, 75 L.Ed. Plaintiff cross-appeals on the ground that K.R.S. 1117 (1931) (display of red flag is expressive conduct). Joint Appendix at 83, 103, 307. Mr. Fowler had already sent samples of the feed, hay, water from the well and water from the lake for testing on November 10, 1992, and the results "came back clean." of Treasury, Civil Action No. 568, 50 L.Ed.2d 471 (1977). Because some parts of the film are animated, they are susceptible to varying interpretations. 1986). For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. Under the circumstances of that case, the court concluded that plaintiff's discharge was not constitutionally offensive. 352, 356 (M.D.Ala. The court rejected plaintiff's vagueness challenge on the ground that his behavior "was sufficiently odd and suggestive that the ordinary person would know, in advance, that his image as an elementary school teacher would be gravely jeopardized." Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. In the present case, it is undisputed that plaintiff's employment was terminated because she had the "R" rated movie shown to her students and because she said she would do it again. Another scene shows children being fed into a giant sausage machine. FRANKLIN COUNTY BOARD OF EDUCATION. United States District Court (Columbia), United States District Courts. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. 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. The case is Fowler vs. Lincoln County Board of Education, 87-657. at 1594-95. District Court Opinion at 23. Another scene shows children being fed into a giant sausage machine. Under circumstances such as these, I cannot conclude that Fowler possessed "[a]n intent to convey a particularized message" to her students. Following this executive session, the board returned to open session and voted unanimously to terminate plaintiff's employment for insubordination and conduct unbecoming a teacher. Id. Joint Appendix at 83-84. Judge Milburn states further that "plaintiff's conduct in having the movie shown cannot be considered expressive or communicative. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. 529, 34 L.Ed.2d 491 (1972). Id., at 1116. 1979), a teacher was demoted after an incident in which she disciplined students caught passing notes by reading the note in class and explaining "that three vulgar colloquialisms contained in the note were not obscene when used in different contexts." at 3165 (emphasis supplied). At the administrative hearing, several students testified that they saw no nudity. Consequently, it awarded her reinstatement, back pay with interest, reimbursement of funds necessary for her reinstatement with the Kentucky Teachers Retirement System, damages for emotional distress and damage to professional reputation, compensatory damages for costs incurred in seeking new employment, costs, and attorney's fees. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. For similar reasons, plaintiff's reliance on Pratt v. Independent School District No. Rather, she had it shown for the purpose of keeping her students occupied during a noninstructional day while she was involved in posting grades on report cards. ), aff'd en banc, 425 F.2d 472 (D.C. Cir. Joint Appendix at 83, 103, 307. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. Mt. Fowler v. Board of Education of Lincoln County (1987): ACADEMIC FREEDOM (Pink Floyd's "The Wall") Facts: district dismissed teacher based on unbecoming conduct (unique to Kentucky) after teacher showed the movie, Pink Floyd's "the wall" to high school students 1974), a teacher was discharged for public displays of deviate sexual behavior under a statute proscribing "conduct unbecoming a teacher." Decided June 1, 1987. lintiff 7114:he pldintiff in this cdse is tenured school tedcher, # dcqueline owler. United States Courts of Appeals. of Education. I at 108-09. 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. at 1648 (quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C. Cir. United States District Court (Eastern District of Michigan). It is undisputed that the audio portion of the movie, which contained enough offensive language to mandate an automatic "R" rating under motion picture industry standards, was played through the entire movie. The single most important element of this inculcative process is the teacher. Trial Transcript Vol. A federal judge ruled that the firing violated Ms. Fowlers First Amendment rights of free expression, and ordered her reinstated and paid $10,000 for emotional distress. Trial Transcript Vol. . Certainly there is greater cause for school board interference when acting within its discretion to establish curriculum, and therefore in requiring a teacher to follow the prescribed curriculum. Under the circumstances present, the court concluded that a discharge for conduct unbecoming a teacher could be upheld. She introduced a controversial and sexually explicit movie into a classroom of adolescents without preview, preparation or discussion. 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. 39 Ed. Finally, the district court concluded that K.R.S. Board of Education (SBE) to be aligned with those standards. 1985), rev'd in part on other grounds, ___ U.S. ___, 106 S.Ct. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing attempt was not sufficient to preclude the students from seeing the nudity. Plaintiff argues that Ky.Rev.Stat. at p. 664. Finally, the district court concluded that K.R.S. of Tipp City, No. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 1504, 1512-13, 84 L.Ed.2d 518 (1985). See, e.g., Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 1782, 1797, 52 L.Ed.2d 261 (1977) ("But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters to take a nonexhaustive list of labels is not entitled to full First Amendment protection."). Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. 161.790(1)(b), which proscribes "conduct unbecoming a teacher," is unconstitutionally vague as applied to her because the statute failed to give notice that her conduct would result in discipline. 719, 724, 15 L.Ed.2d 637 (1966) (sit-in by black students in "whites only" library was symbolic speech); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633-34, 63 S.Ct. Joint Appendix at 321. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. 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. School officials testified that they objected to the movie because it promoted values which were described as immoral, antieducation, antifamily, antijudiciary, and antipolice. She made no attempt at any time to explain the meaning of the movie or to use it as an educational tool. In the process, she abdicated her function as an educator. Joint Appendix at 132-33. 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 . 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, For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. Rehearing and Rehearing En Banc Denied July 21, 1987. In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it." 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." ." 2880, 2897, 37 L.Ed.2d 796 (1973)). 1633 (opinion of White, J.) 1552, 51 L.Ed.2d 775 (1977); diLeo v. Greenfield, 541 F.2d 949 (2d Cir. 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. She testified that she would show an edited. The lm includes violent Andrew Tony Fowler Overview. Id., at 863-69, 102 S.Ct. Id., at 1194. 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. at 287, 97 S.Ct. v. Stachura, 477 U.S. 299, 304-05, 106 S.Ct. These cases are based upon the notion that teaching is a form of activity protected by the First Amendment. 12 (Board) to dismiss her from her teaching position on the grounds of immorality. ", Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing. United States Court of Appeals, Sixth Circuit. In Minarcini, this court held that this "right to know" was violated by the removal of library books solely on the basis of the social and political tastes of the school board. See also Fraser, 106 S.Ct. 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. Mrs. Fowler proved at trial, as Judge Milburn says at page 660 of his opinion, that she was discharged because the board members regarded the movie as "immoral, antieducation, antifamily, antijudiciary, and antipolice." She stated that she did not at any time discuss the movie with her students because she did not have enough time. Healthy, 429 U.S. at 287, 97 S.Ct. 2. 2537, 91 L.Ed.2d 249 (1986); Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1113 (5th Cir. Trial Transcript Vol. 215, 221, 97 L.Ed. 161.790(1)(b) is not unconstitutionally vague. Joint Appendix at 129-30. Following this executive session, the board returned to open session and voted unanimously to terminate plaintiff's employment for insubordination and conduct unbecoming a teacher. The two appeals court judges in the majority upheld the firing for different reasons. Opinion of Judge Peck at p. 668. At the administrative hearing, several students testified that they saw no nudity. He did so by attempting to cover the 25"' screen with an 8 1/2"' by 11"' letter-sized file folder. United States Court of Appeals (6th Circuit), Before MERRITT and MILBURN, Circuit Judges, and PECK; MILBURN; JOHN W. PECK; MERRITT. denied, 409 U.S. 1042, 93 S.Ct. applying Arnett and Wishart in upholding dismissal standard of "conduct unbecoming a teacher", Fowler v. Board of Education of Lincoln County. Id., at 839-40. 733, 736, 21 L.Ed.2d 731 (1969). In the present case, we conclude that plaintiff's conduct, although not illegal, constituted serious misconduct. v. Doyle, 429 U.S. 274, 97 S.Ct. at 573-74. Joint Appendix at 129-30. District Office Staff; Three Year Strategic Plan; Supergram; District Calendar; FUSD Annual Calendar; Student Achievement; Board of Trustees; Accessibility Information . Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. denied, ___ U.S. ___, 106 S.Ct. Joint Appendix at 291. Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. Finally, the district court concluded that K.R.S. Plaintiff cross-appeals on the ground that K.R.S. 1976) (finding no constitutional violation in the Board's exercise of curriculum and textbook control, while, at the same time, determining that the Board had wrongly removed books from the library). Another shows police brutality. Therefore, he said, her decision to permit the students to see the film is not a form of expression entitled to protection under the First Amendment., Judge John W. Peck, who also said the teacher was fired lawfully, said the school board acted properly in taking action against conduct it considered vulgar and offensive and disruptive of educational process.. Id., at 159, 94 S.Ct. of Educ. In January, 1993, Mr. Fowler received a letter from District's director that advised him to get a dairy specialist and a chemist to check the water and feed and have tests run. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. 216 (1952) (Frankfurter, J., concurring) (emphasis supplied). v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. Sec. 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." Sterling, Ky., for defendants-appellants, cross-appellees. Emergency Coalition v. U.S. Dept. . Joint Appendix at 114, 186-87. In its opinion, the district court relied upon the analytical framework provided by the, Request a trial to view additional results. 1972), cert. "Consciously or otherwise, teachers . 1982) is misplaced. . She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. denied, 430 U.S. 931, 97 S.Ct. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. See also In re Matter of Certain Complaints Under Investigation, 783 F.2d 1488, 1512-13 (11th Cir.) 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. ACCEPT. 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. (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. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. 2799, 73 L.Ed.2d 435 (1982), and Bethel School Dist. 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. 3. Jarman v. Williams, 753 F.2d 76, 77-78 (8th 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. Federal judges and local school boards do not make good movie critics or good censors of movie content. School Dist., 439 U.S. 410, 99 S.Ct. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. Although Judge Peck's opinion concedes that "the school board clearly expressed displeasure with the anti-establishment focus of the film," he argues nonetheless that the board's "objections to the `immoral' content of the film were intertwined with constitutionally permissible objections to the film's above mentioned vulgarity and unsuitability for the student age group. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S.Ct. However, the fact that Fowler's conduct was unrelated to the educational process does remove it from the protection afforded by the concept of academic freedom. District Court Opinion at 23. Pink Floyd is the name of a popular rock group. Sec. View Andrew Tony Fowler Full Profile . 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. The superintendent . 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. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. 1970), is misplaced. 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. 1986); Zykan v. Warsaw Community School Corp., 631 F.2d 1300 (7th Cir. 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. 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. Joint Appendix at 82-83. at 1182. Joint Appendix at 127. 1589, 1594-95, 60 L.Ed.2d 49 (1979)). Plaintiff Fowler received her termination notice on or about June 19, 1984. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. 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. 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. Bd. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. Lincoln County School Board Id. I at 101. There is conflicting testimony as to whether, or how much, nudity was seen by the students. 1633, 40 L.Ed.2d 15 (1974), the Court concluded that the term "such cause as will promote the efficiency of the service" was not an unconstitutionally vague standard for employee discharge. In Cohen v. California, 403 U.S. 15, 91 S.Ct. 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. She testified that, despite the fact that she had never seen the movie before having it shown to her students, and despite the fact that she was posting grades on report cards and left the room several times while the movie was being shown, she believed it had significant value. Click the citation to see the full text of the cited case. Moreover, there was a direct connection between this misconduct and Fowler's work as a teacher. Because we conclude that plaintiff's discharge may be upheld under the charge of conduct unbecoming a teacher, we need not reach this issue. (same); Fowler v. Board of Educ. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. It is undisputed that Fowler was discharged for the showing of the movie, Pink Floyd The Wall. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. I at 101. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it.". But he said the school officials fired Ms. Fowler because they also determined the film was inappropriate for classroom viewing because of its sexual innuendo and sexually explicit material, some profane language, violence and vulgar images.. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir. 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. Joint Appendix at 127. 746 (1948), and Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge. Plaintiff relies on Minarcini v. Strongsville City School District, 541 F.2d 577 (6th Cir. 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