Therefore, I would affirm the judgment of the District Court. Id., at 1193. 106 S.Ct. Appeal from the United States District Court for the Eastern District of Kentucky. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. of Educ. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. at 307; Parducci v. Rutland, 316 F. Supp. 1953, 1957, 32 L.Ed.2d 584 (1972). The students had asked to see the film. Fowler v. Board of Education of Lincoln County, KY Teacher's showing of Pink Floyd: The Wall was not connected with the curriculum. 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.. Relying on Fowler v. Board of Education. Sec. 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. 2799, 73 L.Ed.2d 435 (1982), and Bethel School Dist. The court went on to view this conduct in light of the purpose for teacher tenure. 3. In my view this case should be decided under the "mixed motive" analysis of Mt. 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. 1178, 87 L.Ed. Bryan, John C. Fogle, argued, Mt. at 2730. of Educ., 431 U.S. 209, 231, 97 S.Ct. She testified that she would show an edited. It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. at 2810. denied, ___ U.S. ___, 106 S.Ct. 1970), is misplaced. Another shows police brutality. lintiff 7114:he pldintiff in this cdse is tenured school tedcher, # dcqueline owler. 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." 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. In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. She made no attempt at any time to explain the meaning of the movie or to use it as an educational tool. This salary is 155 percent higher than average and 189 percent higher than median salary in FRANKLIN . A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. And in Barnette, the court recognized that a flag salute is a form of communicative conduct which implicates the First Amendment. 126, 127, 70 L.Ed. Joint Appendix at 265-89. 1979). 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. This segment of the film was shown in the morning session. 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). at 576. Because we conclude that plaintiff's discharge may be upheld under the charge of conduct unbecoming a teacher, we need not reach this issue. 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. 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. Joint Appendix at 129-30. Whether a certain activity is entitled to protection under the First Amendment is a question of law. A number of courts have rejected vagueness challenges when an employee's conduct clearly falls within a statutory or regulatory prohibition. One student testified that she saw "glimpses" of nudity, but "nothing really offending. Joint Appendix at 198, 201, 207, 212-13, 223, 226, 251. 1855, 1858, 75 L.Ed.2d 903 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. However, not every form of conduct is protected by the First Amendment right of free speech. High School (D. . Her having the movie shown under the circumstances involved demonstrates a blatant lack of judgment. Circuit Court of Appeals voted 2-1 last June to overturn the trial judge and uphold the firing. Joint Appendix at 120-22. Joint Appendix at 137. United States District Courts. 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. at 1182. 1987 Fowler v. Board of Education of Lincoln County , 819 F.2d 657 (6th Cir.). 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 161.790 provides in relevant part: In Board of Education v. Wood, 717 S.W.2d 837 (Ky. 1986), two tenured teachers were discharged for conduct unbecoming a teacher under section 161.790(1)(b). The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. 85-5815, 85-5835. Plaintiff argues that Ky.Rev.Stat. Subscribers are able to see a list of all the documents that have cited the case. 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. Fowler rented the video tape at a video store in Danville, Kentucky. 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. October 16, 1986. "And our decision in Fowler v. Bd. Id., at 1194. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. Id. Joint Appendix at 129-30. 1780, 29 L.Ed.2d 284 (1971), the Supreme Court held constitutionally protected the act of wearing a jacket bearing the words "!?X! 831, 670 F.2d 771 (8th Cir. 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. 1633 (opinion of White, J.) District Court Opinion at 23. at 576. 5//28he tdught high school % "dtin dnd ivics. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. 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. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. Dist. Healthy standard, a public employee establishes a prima facie case of a constitutional violation if she shows that she was engaged in protected activity, and that such activity was a substantial or motivating factor in the decision to terminate her employment. I would hold, rather, that the district court properly used the Mt. 2799, 73 L.Ed.2d 435 (1982). James W. Williams, III, Rankin, Baker and Williams, Stanford, Ky., Robert L. Chenoweth, Bryan, Fogle and Chenoweth, Mt. Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. Joint Appendix at 82-83. Id., at 1116. 3159, 3164, 92 L.Ed.2d 549 (1986) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77, 99 S.Ct. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. of Educ. Purely expressive works songs, movies and books of entertainment value only are protected by the First Amendment just like works of moral philosophy. 1972), cert. The Court in the recent case of Bethel School Dist. 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. the Draft" into a courthouse corridor. Joint Appendix at 127. In Cohen v. California, 403 U.S. 15, 91 S.Ct. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. On the list of instructional materials approved by the Tulare County Board of Education (search at www.erslibrary.org), or Advanced A.I. Sec. Sterling, Ky., for defendants-appellants, cross-appellees. McCollum, a 13-year employee of the Laurel County Board of Education was engaged as a homebound teacher on a continuing service contract. One student testified that she saw "glimpses" of nudity, but "nothing really offending." Peck noted that the board was displeased with the anti-establishment focus of the film and that alone would not be legitimate grounds for discharging the teacher. It is undisputed that Fowler was discharged for the showing of the movie, Pink Floyd The Wall. She testified that she would show an edited. The record is replete with testimony indicating that school officials objected to the sexual content, vulgarity, and violence contained in the movie. Trial Transcript Vol. 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. 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. 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 . The evidence in Wood established that the teachers had been smoking marijuana with two fifteen-year-old students in the teachers' apartment. 736; James, 461 F.2d at 571. . Trial Transcript Vol. -The district court ruled in favor of Fowler, concluding that her actions are indeed protected under the First Amendment. 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. 322 (1926). Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it.". re-employment even in the absence of the protected conduct." 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. 1986). On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. She did not preview the movie, despite the fact that she had been warned that portions were unsuitable for viewing in this context. at 2730. In Fowler, a high school teacher, at the request of her students, showed them Pink Floyd The Wall, an "R" rated film containing nudity and a great deal of violence, on the last day of school while she completed grade cards. 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. Bd. 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. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. Sterling, Ky., F.C. Another shows the protagonist cutting his chest with a razor. 1731, 1734-35, 20 L.Ed.2d 811 (1968)); see also Anderson v. Evans, 660 F.2d 153, 157 (6th Cir. 1980) ("conduct unbecoming an officer" standard gave notice that reckless gunplay was subject to discipline); Kannisto v. San Francisco, 541 F.2d 841, 844-45 (9th Cir. Joint Appendix at 132-33. . Fowler agreed to allow the movie to be shown, at the students' request, because May 31 was "their treat type of day." Make your practice more effective and efficient with Casetexts legal research suite. ", Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing. United States District Court (Eastern District of Michigan). 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. Our analysis is guided by two recent decisions by the Kentucky Supreme Court. VLEX uses login cookies to provide you with a better browsing experience. Fowler testified that she left the classroom on several occasions while the movie was being shown. See also Abood v. Detroit Bd. 1977) ("immorality" standard not vague as applied to teacher discharged for making sexual advances toward his students). 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