1780, 29 L.Ed.2d 284 (1971), the Supreme Court held constitutionally protected the act of wearing a jacket bearing the words "!?X! The superintendent . of Educ., 431 U.S. 209, 231, 97 S.Ct. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. The fundamental principles of due process are violated only when "a statute . 1117 (1931) (display of red flag is expressive conduct). 719, 15 L.Ed.2d 637 (1966) (sit-in by blacks at "whites only" library), West Virginia State Bd. . Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. v. Pico, 457 U.S. 853, 102 S.Ct. Cmty. The board viewed the movie once in its entirety and once as it had been edited in the classroom. Book Board of Education Policies Section 6000 Instruction . 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. School officials testified that they objected to the movie because it promoted values which were described as immoral, antieducation, antifamily, antijudiciary, and antipolice. See 3 Summaries. Accordingly, we conclude that the statute is not unconstitutionally vague as applied to Fowler's conduct. 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. See also James, 461 F.2d at 568-69. 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. Because some parts of the film are animated, they are susceptible to varying interpretations. 1985) (nonexpressive dancing constitutes conduct not entitled to protection of the First Amendment). 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. Fowler rented the video tape at a video store in Danville, Kentucky. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it." at 1788. demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. Plaintiff cross-appeals from the holding that K.R.S. In the process, she abdicated her function as an educator. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. at 2805-06, 2809. Subscribers are able to see a list of all the cited cases and legislation of a document. 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. 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, There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. at 1594-95. Under the Mt. There is conflicting testimony as to whether, or how much, nudity was seen by the students. at p. 664. 1979); Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir. She testified that she would show an edited. Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. 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. A number of courts have rejected vagueness challenges when an employee's conduct clearly falls within a statutory or regulatory prohibition. Joint Appendix at 242-46. Finally, the district court concluded that K.R.S. 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. Rehearing Denied January 22, 1987. . And in Barnette, the court recognized that a flag salute is a form of communicative conduct which implicates the First Amendment. 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 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. 529, 34 L.Ed.2d 491 (1972). 2799, 73 L.Ed.2d 435 (1982), and Bethel School Dist. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. See Jarman, 753 F.2d at 77. at 177, 94 S.Ct. However, not every form of conduct is protected by the First Amendment right of free speech. 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. 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. 6th Circuit. In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. 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 . 568, 50 L.Ed.2d 471 (1977). 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. . United States Court of Appeals (6th Circuit), Before MERRITT and MILBURN, Circuit Judges, and PECK; MILBURN; JOHN W. PECK; MERRITT. Cir. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. United States District Court (Columbia), United States District Courts. 161.790(1)(b) is not unconstitutionally vague. 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. 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. In my view this case should be decided under the "mixed motive" analysis of Mt. Sterling, Ky., for defendants-appellants, cross-appellees. Judge Milburn states further that "plaintiff's conduct in having the movie shown cannot be considered expressive or communicative. Fraser, 106 S.Ct. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. Another scene shows children being fed into a giant sausage machine. As we have noted, the "R" rated movie was shown on a noninstructional day to students in Fowler's classes in grades nine through eleven who were of ages ranging from fourteen through seventeen. of Educ. ), cert. 06-1215(ESH). Sterling, Ky., for defendants-appellants, cross-appellees. 1098 (1952). These cases do not lend themselves to the reverse purpose of defining what kind of communication can not be expressive. Fisher v. Snyder, 476375 (8th Cir. 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. denied, 430 U.S. 931, 97 S.Ct. View Andrew Tony Fowler Full Profile . Summary of this case from Fowler v. Board of Education of Lincoln County. 1633 (opinion of White, J.) at 1182. 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. At the administrative hearing, several students testified that they saw no nudity. Joint Appendix at 137. 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 mere fact that at some point she may have developed an approval of the content of the movie is not, standing alone, a sufficient basis for the conclusion that her conduct in having the movie shown was a form of expression entitled to protection under the First Amendment. Id. Therefore, I would affirm the judgment of the District Court. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. As herein above indicated, I concur in the result reached in Judge Milburn's opinion. 1982) is misplaced. In my view, both of the cases cited by the dissent are inapposite. 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. 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. 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. The more important question is not the motive of the speaker so much as the purpose of the interference. 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. board could dismiss a tenured high school teacher with 14 years of experience for insubordination and conduct unbecoming an educator for showing Pink Floyd: The Wall on the last day of the academic year considered a noninstructional day (Fowler v. Board of Education of Lincoln County, Ky. 1987a, 1987b). 95-2593. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. 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. One scene involves a bloody battlefield. 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. There is conflicting testimony as to whether, or how much, nudity was seen by the students. 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. 1, Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251. Consequently, the focus of our inquiry is whether Fowler's conduct was constitutionally protected. 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. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. Plaintiff relies on Minarcini v. Strongsville City School District, 541 F.2d 577 (6th Cir. Arthur L. Brooks, Jane V. Fitzpatrick, Brooks, Coffman and Fitzpatrick, Lexington, Ky., Walter Alan Kamiat, argued, Bredhoff & Kaiser, Washington, D.C., for plaintiff-appellee, cross-appellant. Joint Appendix at 114, 186-87. . In the final analysis. 3159, 92 L.Ed.2d 549 (1986). Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. In the present case, we conclude that plaintiff's conduct, although not illegal, constituted serious misconduct. Joint Appendix at 82-83. 161.790(1)(b) is not unconstitutionally vague. 403 U.S. at 25, 91 S.Ct. 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 . Id., at 583. Moreover, there was a direct connection between this misconduct and Fowler's work as a teacher. at 287, 97 S.Ct. 418 U.S. at 409, 94 S.Ct. Make your practice more effective and efficient with Casetexts legal research suite. James, 461 F.2d at 571-72 (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 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. The Court in the recent case of Bethel School Dist. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. 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 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. Mt. 161.790(1)(b). Fowler agreed to allow the movie to be shown, at the students' request, because May 31 was "their treat type of day." She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. 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. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. Healthy, 429 U.S. at 287, 97 S.Ct. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. Joint Appendix at 265-89. Andrew Tony Fowler in 2021 was employed in FRANKLIN COUNTY BOARD OF EDUCATION and had annual salary of $99,765 according to public records. The cases just discussed demonstrate that conduct is protected by the First Amendment only when it is expressive or communicative in nature. Opinion of Judge Peck at p. 668. I at 101. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. This segment of the film was shown in the morning session. VLEX uses login cookies to provide you with a better browsing experience. Furthermore, since this was a "free day" for the students, no departure from a board-mandated curriculum occurred. 1731, 1734-35, 20 L.Ed.2d 811 (1968)); see also Anderson v. Evans, 660 F.2d 153, 157 (6th Cir. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S.Ct. 3. 693, 58 L.Ed.2d 619 (1979) (holding that a conversation by a teacher and principal in the principal's office, a private expression by a public employee, was protected speech). We find this argument to be without merit. 733, 736, 21 L.Ed.2d 731 (1969). Because some parts of the film are animated, they are susceptible to varying interpretations. 5//28he wds employed by the % "incoln ounty 5//28chool istrict in $ !entucky. Joint Appendix at 308-09. Moreover, even these three justices explicitly noted that the decision regarding this right did not extend to the classroom. The Sixth Circuit and neighboring sister circuits have provided this Court with a comprehensive analytic, The court thus held that Boring's mere "implicit approval" of the ideas in the play "was not expressive, Full title:JACQUELINE FOWLER, PLAINTIFF-APPELLEE, CROSS-APPELLANT, v. THE BOARD OF, Court:United States Court of Appeals, Sixth Circuit, holding that prohibition for "conduct unbecoming a teacher" could not be challenged on vagueness or overbreadth grounds by teacher who was terminated for conduct clearly falling within scope of prohibition. 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. healthy city school district board of education v. doyle, Fowler v. Board of Education of Lincoln County and more. See, e.g., Mt. 1589, 1594-95, 60 L.Ed.2d 49 (1979)). 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. One scene involves a bloody battlefield. 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. 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). Subscribers are able to see a visualisation of a case and its relationships to other cases. Finally, we must determine whether plaintiff's conduct constituted "conduct unbecoming a teacher" within the meaning of Ky.Rev.Stat. She lost her case for reinstatement. 85-5815, 85-5835. 2730 (citation omitted). 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. Joint Appendix at 321. The two appeals court judges in the majority upheld the firing for different reasons. In fact, Mrs. Fowler was not discharged because she entertained her students: she was discharged because the school board did not like the content of the movie. (Education Code 60605.86- . As those cases recognize, the First . 1970), is misplaced. . Another scene shows children being fed into a giant sausage machine. 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. She stated that she did not at any time discuss the movie with her students because she did not have enough time. Sec. San Francisco Unified School District and County Office of Education Board Policy 6161.11 Supplementary Instructional Materials . Sterling, Ky., F.C. of Educ.. (opinion of Powell, J.) FRANKLIN COUNTY BOARD OF EDUCATION. Ephraim, 452 U.S. 61, 101 S.Ct. Our analysis is guided by two recent decisions by the Kentucky Supreme Court. -The district court ruled in favor of Fowler, concluding that her actions are indeed protected under the First Amendment. v. Doyle, 429 U.S. 274, 97 S.Ct. See Minarcini v. Strongsville City School Dist., 541 F.2d 577 (6th Cir. . 693, 58 L.Ed.2d 619 (1979); Mt. On its distinctive facts, Fowler v. Board of Education of Lincoln County, Kentucky' is almost ideally suited as a vehicle for reexamining some of the "deeper" issues associated with the in-school speech of public high school teachers in particular and with free speech law in general. 525, 542, 92 L.Ed. Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge. enjoys First Amendment protection"). 39 Ed. 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. District Court Opinion at 23. Joint Appendix at 83, 103, 307. 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. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 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. at 3165. 216 (1952) (Frankfurter, J., concurring) (emphasis supplied). 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." The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. The film describes the life of a rock star, including his childhood, failed marriage, drug abuse and ruined career. Right of free speech employed in FRANKLIN County Board of Education, 391 U.S. 563,,! Of Ky.Rev.Stat and out of class insubordination and conduct unbecoming a teacher, is unconstitutionally vague applied! 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