at 3165 (quoting Ambach, 441 U.S. at 76-77, 99 S.Ct. at 307; Parducci v. Rutland, 316 F. Supp. Id., at 1116. at 287, 97 S.Ct. Bryan, John C. Fogle, argued, Mt. I at 101. 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. See also Ambach, 441 U.S. at 76-77, 99 S.Ct. 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. On cross-examination, Charles Bailey testified that Mrs. Fowler told him to open the file folder while editing after Candler entered the room. 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." She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. It is undisputed that Fowler was discharged for the showing of the movie, Pink Floyd The Wall. I believe a teacher should be similarly protected by the First Amendment whether she is participating in an instructional or non-instructional day. denied, ___ U.S. ___, 106 S.Ct. However, not every form of conduct is protected by the First Amendment right of free speech. of Educ. 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. Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. "And our decision in Fowler v. Bd. 1178, 1183, 87 L.Ed. The Mt. I would hold, rather, that the district court properly used the Mt. 529, 34 L.Ed.2d 491 (1972). Mt. Fowler rented the video tape at a video store in Danville, Kentucky. 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. Pucci v. Michigan Supreme Court, Case No. Healthy City School Dist. The school board stated insubordination as an alternate ground for plaintiff's dismissal. This court need not go as far as the Court did in Pico and Bethel because those cases respectively involved school library and a school assembly and did not have the captive audience factor with the teacher acting in loco parentis that is present in this case. . Another scene shows children being fed into a giant sausage machine. Joint Appendix at 321. 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. 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. Plaintiff cross-appeals from the holding that K.R.S. District Court Opinion at 6. 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. Id., at 840. THE BUNCOMBE COUNTY BOARD OF EDUCATION; Charles Johnson, Chairman; Michael Anders; Terry Roberson; Bruce Goforth; Bill Williams; Grace Brazil; Wendell Begley; Dr. J. Frank Yeager, Superintendent; Fred Ivey, Principal; each in his/her individual and official capacity, Defendants-Appellees. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. '", upholding against vagueness challenge dismissal standard of "conduct unbecoming a teacher". He did so by attempting to cover the 25" screen with an 8 1/2" by 11" letter-sized file folder. Subscribers are able to see any amendments made to the case. 85-5815, 85-5835. I agree with both of these findings. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it.". Moreover, even these three justices explicitly noted that the decision regarding this right did not extend to the classroom. The cases just discussed demonstrate that conduct is protected by the First Amendment only when it is expressive or communicative in nature. Id. 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. 2294, 2299, 33 L.Ed.2d 222 (1972); 511 Detroit Street, Inc. v. Kelley, 807 F.2d 1293, 1295 (6th Cir. Subscribers are able to see a list of all the cited cases and legislation of a document. Similarly, in Wishart v. McDonald, 500 F.2d 1110 (1st Cir. Id., at 410, 94 S.Ct. Id., at 839. Boring v. Buncombe County Bd. Healthy. 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. The board viewed the movie once in its entirety and once as it had been edited in the classroom. ." The District Court held that the school board failed to carry this Mt. It is also undisputed that she left the room on several occasions while the film was being shown. 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." v. Fraser further supported the school board's authority to take action against conduct it considered vulgar and offensive and disruptive of the educational process. The fundamental principles of due process are violated only when "a statute . 06-1215(ESH). Emergency Coalition v. U.S. Dept. They also found the movie objectionable because of its sexual content, vulgar language, and violence. Ms. Fowler later told school officials she believed the movie has significant value because it deals with personal alienation and the dangers of repressive educational systems. Joint Appendix at 83, 103, 307. We find this argument to be without merit. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research. Mt. It is speculation to say how much the school board was swayed by the fact that Ms. Fowler did not exhibit second thoughts on having shown the film, and not only did not see the "error of her ways" but said that she would show the film again if given the opportunity. In my view, both of the cases cited by the dissent are inapposite. In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. In the process, she abdicated her function as an educator. The justices, without comment, let stand a ruling that the teachers free- expression rights were not violated. Plaintiff cross-appeals from the holding 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. 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. For similar reasons, plaintiff's reliance on Pratt v. Independent School District No. Joint Appendix at 82-83. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. 1985), rev'd in part on other grounds, ___ U.S. ___, 106 S.Ct. There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. "Consciously or otherwise, teachers . 1986). 1984). Fowler testified that she left the classroom on several occasions while the movie was being shown. Wieman v. Updegraff, 344 U.S. 183, 196, 73 S.Ct. 1985) (nonexpressive dancing constitutes conduct not entitled to protection of the First Amendment). enjoys First Amendment protection"). Relying on Fowler v. Board of Education. 6th Circuit. 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. at 573-74. 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." Sec. of Education. 1979); Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir. 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. Fowler v. Board of Education of Lincoln County, (1978) 819 F.2d 657 Management Resources: . 2537, 91 L.Ed.2d 249 (1986). Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251. Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing, There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. In the present case, we conclude that plaintiff's conduct, although not illegal, constituted serious misconduct. Breen v. Kahl, 419 F.2d 1034 (1969); Crews v. Cloncs, 432 F.2d 1259 (1970). 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. This segment of the film was shown in the morning session. But a panel of the 6th U.S. 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. Healthy burden. of Educ., supra (finding a teacher's communication with a radio station regarding school board policies was constitutionally protected activity); Givhan v. Western Line Consol. Her having the movie shown under the circumstances involved demonstrates a blatant lack of judgment. Sterling, Ky., F.C. See also James, 461 F.2d at 568-69. Healthy case, involving actions by a teacher outside the school environment, must be viewed in light of the court's deference to the autonomy of school boards in regulating the educational process. She did not preview the movie, despite the fact that she had been warned that portions were unsuitable for viewing in this context. 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. 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."). When the students watched the film on May 31, 1984, Ms. Fowler directed a student who had seen the movie previously to cover the screen with a file folder during scenes involving nudity or sexually suggestive material. denied, 430 U.S. 931, 97 S.Ct. Finally, the district court concluded that K.R.S. At the administrative hearing, several students testified that they saw no nudity. healthy city school district board of education v. doyle, Fowler v. Board of Education of Lincoln County and more. 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. 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. There is conflicting testimony as to whether, or how much, nudity was seen by the students. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. FOWLER V. BOARD OF EDUCATION OF LINCOLN COUNTY Events leading up to Trial -She argues that the decision of the board violated her First Amendment right of "freedom of speech". . Lincoln County School Board 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 Connect with the definitive source for global and local news. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. 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. 1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir. Connally v. General Construction Co., 269 U.S. 385, 391, 46 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. 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. 2849, 2859, 53 L.Ed.2d 965 (1977) ("no doubt that entertainment . In so finding we are not troubled by the Seventh Circuit's decisions respecting a school's attempted regulation of hair length. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. District Court Opinion at 23. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. Id., at 863-69, 102 S.Ct. 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 the administrative hearing, several students testified that they saw no nudity. Healthy City School Dist. Healthy, 429 U.S. at 282-84, 97 S.Ct. Counts v. Cedarville School District Books put on reserve in the library must be so because of clear violation of obscenity rules. 1979). Pink Floyd is the name of a popular rock group. 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. 568, 50 L.Ed.2d 471 (1977). 106 S.Ct. Rehearing and Rehearing En Banc Denied July 21, 1987. Evans-Marshall v. Board of Educ. These cases are based upon the notion that teaching is a form of activity protected by the First Amendment. -The district court ruled in favor of Fowler, concluding that her actions are indeed protected under the First Amendment. One student testified that she saw "glimpses" of nudity, but "nothing really offending." "To regard teachers in our entire educational system, from the primary grades to the university as the priests of our democracy is therefore not to indulge in hyperbole." 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 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 Supreme Court in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. Joint Appendix at 114, 186-87. 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. It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. Bd. VLEX uses login cookies to provide you with a better browsing experience. 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.. United States Court of Appeals, Sixth Circuit. Appeal from the United States District Court for the Eastern District of Kentucky. He finds that Ms. Fowler did not possess "[a]n intent to convey a particularized message" to her students because she was not familiar with the content of the film before she showed it, citing Spence v. Washington, 418 U.S. 405, 410, 94 S.Ct. 1972), cert. There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. However, she stated that she believed Charles Bailey when he told her that he continued to edit while she was gone. The evidence in Wood established that the teachers had been smoking marijuana with two fifteen-year-old students in the teachers' apartment. What one judge sees as "gross and bizarre," another may find, as did District Judge Scott Reed below, mild and not very "sexually suggestive.". at 2805-06, 2809. at 1594-95, and Tinker, 393 U.S. at 508, 89 S.Ct. Assuming that the school board could have properly discharged Mrs. Fowler for poor judgment and lack of remorse in showing an "R-rated" movie which had short scenes depicting nudity and sexual foreplay, but not for the other reasons given, this case must be decided under the "mixed-motive" analysis of Mt. Joint Appendix at 242-46. 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). On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. 26 v. Pico, 457 U.S. 853, 102 S.Ct. . The justices, without comment, let stand a ruling that the teacher's free- expression rights were not violated. Finally, the district court concluded that K.R.S. 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. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. . Furthermore, since this was a "free day" for the students, no departure from a board-mandated curriculum occurred. Joint Appendix at 82-83. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. 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. Joint Appendix at 198, 201, 207, 212-13, 223, 226, 251. 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. She said the store clerk who rented it to her told her it contained some nudity but also dealt with social issues of importance to teen-agers. 1, 469 F.2d 623 (2d Cir. Jarman v. Williams, 753 F.2d 76, 77-78 (8th Cir. Joint Appendix at 132-33. 397 (M.D.Ala. 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. Under circumstances such as these, I cannot conclude that Fowler possessed "[a]n intent to convey a particularized message" to her students. 1098 (1952). denied, 411 U.S. 932, 93 S.Ct. Another shows police brutality. of Lincoln Cty .. at 736-37. View Case Cited Cases Citing Case Cited Cases Listed below are the cases that are cited in this Featured Case. demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. 1855, 1858, 75 L.Ed.2d 903 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 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 . Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. 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 clerk who rented the "R" rated tape to Fowler told her that there was some nudity in the movie during a song called "Young Lust" and warned that she might wish to delete that section. The case is Fowler vs. Lincoln County Board of Education, 87-657. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 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