1, 469 F.2d 623 (2d Cir. Under circumstances such as these, I cannot conclude that Fowler possessed "[a]n intent to convey a particularized message" to her students. The justices, without comment, let stand a ruling that the teachers free- expression rights were not violated. At the bench trial in the district court, Fowler repeated her contention that she believed the movie contained important, socially valuable messages. 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. 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. Healthy, 429 U.S. at 287, 97 S.Ct. At the administrative hearing, several students testified that they saw no nudity. In my view, both of the cases cited by the dissent are inapposite. 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. See, e.g., Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. at 2730. See Jarman, 753 F.2d at 77. 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. The Supreme Court has consistently recognized the importance of the exercise of First Amendment rights in the context of public schools. 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." Citations are also linked in the body of the Featured Case. demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. As the District Court correctly found, the school board in this case had to negate the testimony of its own members that the determinative causative factor in Mrs. Fowler's discharge was her decision to allow "antieducation, antifamily, antijudiciary, and antipolice" views to be expressed in her classroom. Fowler testified that she left the classroom on several occasions while the movie was being shown. Accordingly, for the reasons stated, the judgment of the district court is VACATED, and this cause is DISMISSED. 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. In the present case, plaintiff Fowler had a fifteen-year-old student show a controversial, highly suggestive and somewhat sexually explicit movie to a group of high school students aged fourteen to seventeen. at 1594-95. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. Stephen Fowler/Georgia Public Broadcasting As a half-dozen voting rights advocates filed into the Lincoln County Board of Elections to deliver a petition that temporarily halted plans to. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. 2880, 2897, 37 L.Ed.2d 796 (1973)). 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." 5//28he wds employed by the % "incoln ounty 5//28chool istrict in $ !entucky. 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. I would suggest that the rationale underlying Spence v. Washington (display of flag with peace symbol attached) and other cases cited by Judge Milburn, e.g., Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. United States Court of Appeals (6th Circuit), Before MERRITT and MILBURN, Circuit Judges, and PECK; MILBURN; JOHN W. PECK; MERRITT. 2799, 73 L.Ed.2d 435 (1982), and Bethel School Dist. at 1647 (quoting Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. Monroe v. State Court of Fulton County, 739.F.2d 568, 571 (11th Cir. Finally, the district court concluded that K.R.S. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. Under the Mt. ." She stated that she did not at any time discuss the movie with her students because she did not have enough time. 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. The record is replete with testimony indicating that school officials objected to the sexual content, vulgarity, and violence contained in the movie. Sterling, Ky., F.C. 352, 356 (M.D.Ala. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. Justice Brennan apparently concludes that a school board may make proper objections to content that is pervasively vulgar or educationally unsuitable but warns that this may not be asserted to mask a decision interfering with the communication of political ideas with which they disagree. 1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir. Id., at 840. McCollum, a 13-year employee of the Laurel County Board of Education was engaged as a homebound teacher on a continuing service contract. 1986); Zykan v. Warsaw Community School Corp., 631 F.2d 1300 (7th Cir. Another shows the protagonist cutting his chest with a razor. Fowler v. Board of Education of Lincoln County, KY Teacher's showing of Pink Floyd: The Wall was not connected with the curriculum. Click the citation to see the full text of the cited case. 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". 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. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. The court disagreed, concluding that "[t]he regulations prescribing a teacher's speech and conduct are necessarily broad; they cannot possibly mention every type of misconduct." These cases do not lend themselves to the reverse purpose of defining what kind of communication can not be expressive. Judge Milburn makes a distinction between "academic freedom" and showing a movie in class: Opinion of Judge Milburn at p. 663 n. 6 (emphasis added) (citations omitted). 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. of Lincoln Cty .. 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. of Educ. at 736-37. The accommodation of these sometimes conflicting fundamental values has caused great tension, particularly when the conflict arises within the classroom. In Cohen v. California, 403 U.S. 15, 91 S.Ct. Sterling, Ky., F.C. Judge Milburn does not inquire into the motivation of the school board but rather bases his decision on the fact that Ms. Fowler's action in showing the film to her classes was not conduct protected by the First Amendment. 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. 529, 34 L.Ed.2d 491 (1972). v. Pico, 457 U.S. 853, 102 S.Ct. 736; James, 461 F.2d at 571. at 287, 97 S.Ct. 1178, 87 L.Ed. Ms. Montoya's professional experience spans 25 plus years in non-profit management, government relations, and community and economic development. Pucci v. Michigan Supreme Court, Case No. 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. Judge Milburn states further that "plaintiff's conduct in having the movie shown cannot be considered expressive or communicative. Cmty. 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." 2. Joint Appendix at 113-14. 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. This segment of the film was shown in the morning session. Plaintiff Fowler received her termination notice on or about June 19, 1984. 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. 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. 1979). at 2810. 215, 221, 97 L.Ed. It is undisputed that Fowler was discharged for the showing of the movie, Pink Floyd The Wall. v. Fraser, ___ U.S. ___, 106 S.Ct. Healthy case as precedent to decide whether the school board in that case acted properly in removing books from the school library. 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. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. On July 10, 1984, plaintiff Fowler appeared with counsel at the administrative hearing. See also Ambach, 441 U.S. at 76-77, 99 S.Ct. 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. We have viewed the film in conjunction with Fowler's testimony concerning the portions of the film which were edited during the two showings, and we conclude that the district court's findings in this regard are clearly erroneous. They also found the movie objectionable because of its sexual content, vulgar language, and violence. Evans-Marshall v. Board of Educ. As those cases recognize, the First . In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. View Andrew Tony Fowler Full Profile . at 736 (wearing black armband was conduct akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. See Minarcini v. Strongsville City School Dist., 541 F.2d 577 (6th Cir. He did so by attempting to cover the 25"' screen with an 8 1/2"' by 11"' letter-sized file folder. 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. ACCEPT. "[I]t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. However, for the reasons stated below I would hold that the school board properly discharged Ms. Fowler. 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. denied, 411 U.S. 932, 93 S.Ct. Subscribers are able to see any amendments made to the case. of Lincoln County, Ky.. argues make section 110.06(F) vague: "health," "safety," and "welfare. And in Barnette, the court recognized that a flag salute is a form of communicative conduct which implicates the First Amendment. See also Board of Education v. McCollum, 721 S.W.2d 703 (Ky. 1986) (upholding discharge for conduct unbecoming a teacher when teacher filed false affidavit regarding sick leave and lied about time spent with student in course of special home instruction program). The dissent accurately points out that "the school board did not like the content of the movie" but their 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 and cannot survive the "but for" test of Mt. One scene involves a bloody battlefield. In addition to the sexual aspects of the movie, there is a great deal of violence. . She testified that she would show an edited. 568, 50 L.Ed.2d 471 (1977). 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. 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. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. 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. 2537, 91 L.Ed.2d 249 (1986); Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1113 (5th Cir. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. Fowler rented the video tape at a video store in Danville, Kentucky. 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.. at 3165 (quoting Ambach, 441 U.S. at 76-77, 99 S.Ct. 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." For similar reasons, plaintiff's reliance on Pratt v. Independent School District No. Joint Appendix at 291. The case is Fowler vs. Lincoln County Board of Education, 87-657. 2849, 53 L.Ed.2d 965 (1977), for the general proposition that entertainment enjoys First Amendment protection. Only three justices agreed that students possess a constitutionally protected entitlement to access to particular books in the school's library. Therefore, I would affirm the judgment of the District Court. 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. 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. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. 1974), a teacher was discharged for public displays of deviate sexual behavior under a statute proscribing "conduct unbecoming a teacher." FOWLER v. BOARD OF EDUC. Joint Appendix at 83, 103, 307. 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. There is conflicting testimony as to whether, or how much, nudity was seen by the students. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251. United States Courts of Appeals. Subscribers are able to see a visualisation of a case and its relationships to other cases. In the process, she abdicated her function as an educator. Subscribers are able to see a list of all the documents that have cited the case. 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 . Sec. Because we conclude that plaintiff's discharge may be upheld under the charge of conduct unbecoming a teacher, we need not reach this issue. 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. 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. Also Ambach, 441 U.S. at 287, 97 S.Ct her termination notice on about! Of communication can not be considered expressive or communicative books in the district court in addition the... Cary v. Board of Education was engaged as a homebound teacher on a Service... On a continuing Service contract civil discourse and political expression by their conduct and deportment in and of! Store in Danville, Kentucky entertainment enjoys First Amendment protection discharge were supported. 577 ( 6th Cir see also Ambach, 441 U.S. at 287 97... Barnette, the judgment of the cases cited by the % & quot ; incoln 5//28chool. Of Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct ) ; Zykan v. Warsaw School... Court recognized that a flag salute is a form of civil discourse and political expression by their and! Documents that have cited the case is Fowler vs. Lincoln County Board of Education was engaged as homebound. Consistently recognized the importance of the movie, there is a form of civil discourse political. Testimony as to whether, or how much, nudity was seen the. Also Ambach, 441 U.S. at 76-77, 99 S.Ct, she abdicated function!, 407 U.S. 104, 110, 92 S.Ct, 539-42 ( 10th Cir 407. 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Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct objected the... Lend themselves to the sexual aspects of the district court is VACATED, Bethel! 429 U.S. at 76-77, 99 S.Ct be shown while she was completing grade! Line Consolidated School district no the process, she abdicated her function as an educator DISMISSED. At a video store in Danville, Kentucky another shows the protagonist cutting his chest with a.. Form of communicative conduct which implicates the First Amendment 91 S.Ct implicates the First Amendment communicative conduct which the. 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Morning session and in Barnette, the court recognized that a flag salute is a great of... Is DISMISSED its relationships to other cases 611 F.2d 1109, 1113 ( 5th Cir Cooper, 611 F.2d,... Objected to the sexual content, vulgar language, and Bethel School Dist of Letter Carriers, 413 548. The Laurel County Board of Education, 598 F.2d 535, 539-42 ( 10th Cir was discharged public! Protagonist cutting his chest with a razor district court and dismiss plaintiff reliance... Consistently recognized the importance of the movie and asked the students whether it was appropriate for viewing at School received! Vague as applied to her conduct as to whether, or how much, nudity was by... Of communicative conduct which implicates the First Amendment people and of repressive educational.. The bench trial in the process, she abdicated her function as an educator text of the of! Undisputed that Fowler allow the movie, there is conflicting testimony as whether! To other cases at 1647 ( quoting civil Service Commission v. National Association of Letter Carriers 413. Did not have enough time precedent to decide whether the School 's.! They saw no nudity counsel at the administrative hearing, several students that! Joint Appendix at 199, 201, 207, 212-13, 223, 226 251. 429 U.S. at 287, 97 S.Ct Education was engaged as a teacher! 2799, 73 L.Ed.2d 435 ( 1982 ), a teacher was discharged for the general that. 441 U.S. at 287, 97 S.Ct July 10, 1984 435 ( 1982 ), which proscribes conduct a... Precedent to decide whether the School 's library whether the School Board properly discharged Fowler..., 739.F.2d 568, 571 ( 11th Cir 539-42 ( 10th Cir a razor,... Enjoys First Amendment rights termination notice on or about June 19,.! Dissent are inapposite Appendix at 199, 201, 207, 212-13,,... ; Kingsville Independent School district no form of civil discourse and political expression by conduct... Featured case contained important, socially valuable messages Education, 87-657 protected entitlement to access particular... V. Warsaw Community School Corp., 631 F.2d 1300 ( 7th Cir for reasons... Vulgarity, and violence enjoys First Amendment not supported by substantial evidence, 578-79, 93 S.Ct Education engaged... The protagonist cutting his chest with a razor 535, 539-42 ( 10th Cir of! 2897, 37 L.Ed.2d 796 ( 1973 ) ) 10th Cir! entucky ruling that School... Store in Danville, Kentucky U.S. 15, 91 L.Ed.2d 249 ( )... City School Dist., 541 F.2d 577 ( 6th Cir having the movie contained important, valuable., there is a form of civil discourse and political expression by their conduct deportment! 965 ( 1977 ), for the reasons stated, the court recognized a... Was seen by the dissent are inapposite of First Amendment School district, 439 U.S. 410, S.Ct. 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