If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution. Ky.Rev.Stat. The cases just discussed demonstrate that conduct is protected by the First Amendment only when it is expressive or communicative in nature.7 In the present case, because plaintiff's conduct in having the movie shown cannot be considered expressive or communicative, under the circumstances presented, the protection of the First Amendment is not implicated. 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. BUILDING & CONSTRUCTION TRADES COUNCIL PHILADELPHIA & VICINITY ET AL. ), aff'd en banc, 425 F.2d 472 (D.C. Cir. accident), Expand root word by any number of One scene involves a bloodly battlefield. For similar reasons, plaintiff's reliance on Pratt v. Independent School District No. Cited 833 times, 72 S. Ct. 777 (1952) | at 840. 1117 (1931) (display of red flag is expressive conduct). The most conscientious of codes that define prohibited conduct of employees includes 'catchall' clauses prohibiting employee 'misconduct,' 'immorality,' or 'conduct unbecoming.' Send Email It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. at 583. 1979); Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir. Therefore, I would affirm the judgment of the District Court. Cir. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. That a teacher does have First Amendment protection under certain circumstances cannot be denied. Joint Appendix at 321. These cases do not lend themselves to the reverse purpose of defining what kind of communication can not be expressive. 2d 629, 87 S. Ct. 675 (1967) (discussing importance of academic freedom). 2d 619, 99 S. Ct. 693 (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). On July 10, 1984, plaintiff Fowler appeared with counsel at the administrative hearing. Judge Milburn makes a distinction between "academic freedom" and showing a movie in class: We do not intimate that a teacher is entitled to the protection of the First Amendment only when teaching. In my view, the facts of the present case do not fit any of the Supreme Court cases that have been decided to date. Healthy, 429 U.S. at 287, 97 S. Ct. at 576. 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 also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. However, I conclude that Fowler's conduct in having the movie shown under the circumstances present here did not constitute expression4 protected by the First Amendment.5 It is undisputed that Fowler was discharged for the showing of the movie, Pink Floyd -- The Wall. demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Plaintiff's reliance upon cases grounded in the concept of "academic freedom," e.g., Cooper, 611 F.2d at 1113; Dean, 486 F. Supp. The board viewed the movie once in its entirety and once as it had been edited in the classroom. The fundamental principles of due process are violated only when "a statute . Erika Capogna Fowler vs BOE Background Information - Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky school system - Group of students requested that the movie, "Pink Floyd- The Wall" was shown - Fowler was prompted by Charles Bailey, age 15, who In the process, she abdicated her function as an educator. What one judge sees as "gross and bizarre," another may find, as did District Judge Scott Reed below, mild and not very "sexually suggestive.". denied, 430 U.S. 931, 97 S. Ct. 1552, 51 L. Ed. Likewise, a motion picture is a form of expression which may be entitled to the protection of the First Amendment. 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. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. 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. Cited 63 times, 51 S. Ct. 532 (1931) | v. Doyle, 429 U.S. 274, 285-87, 97 S. Ct. 568, 50 L. Ed. Whether a certain activity is entitled to protection under the First Amendment is a question of law. She testified that she would show an edited version of the movie again if given the opportunity to explain it. There is conflicting testimony as to whether, or how much, nudity was seen by the students. Cited 1886 times, 86 S. Ct. 719 (1966) | at 863-69. 2d 549 (1986). 598 F.2d 535 - CARY v. BD. Law Rep. 1011 Jacqueline FOWLER, Plaintiff-Appellee, Cross-Appellant, v. The BOARD OF EDUCATION OF LINCOLN COUNTY, KENTUCKY; Joseph G. Blair, Individually and As Superintendent of the Lincoln County Schools; Lloyd McGuffey; Jimmy Cooper; Ivan Singleton; Tom Blankenship; and Paul Playforth, Individually and Each in His Official Capacities, The record is replete with testimony indicating that school officials objected to the sexual content, vulgarity, and violence contained in the movie, Whether a certain activity is entitled to protection under the First Amendment is a question of law. WEST VIRGINIA STATE BOARD EDUCATION ET AL. 2d 671 (1981) (entertainment protected same as political or ideological speech); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578, 97 S. Ct. 2849, 53 L. Ed. For similar reasons, plaintiff's reliance on Pratt v. Independent School District No. 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." Spence v. Washington, 418 U.S. 405, 409-10, 94 S. Ct. 2727, 2729-30, 41 L. Ed. 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." 1, TOWNS OF RUSH, ETC., N. Y.. 541 F.2d 577 - MINARCINI v. STRONGSVILLE CITY SCHOOL DIST.. 541 F.2d 841 - KANNISTO v. CITY AND COUNTY OF SAN FRANCISCO. View Profile. I at 108-09. 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. Click the citation to see the full text of the cited case. 1981); Russo, 469 F.2d at 631. 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. 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. ), cert. 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. 478 U.S. 675 - BETHEL SCHOOL DIST. 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. If [plaintiff] shows "an intent to convey a particularized message . First Amendment to the United States Constitution, Fourteenth Amendment to the United States Constitution, Board of Education of Township High School District 205, Fowler v. Board of Education of Lincoln County, United States Court of Appeals, Sixth Circuit, 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, Discharged for insubordination and conduct unbecoming a teacher in July 1984. The message is that unloving, overly rigid and authoritarian parents, teachers, judges and officials create disturbed individuals and societies. 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. The school board stated insubordination as an alternate ground for plaintiff's dismissal. 2d 965 (1977), for the general proposition that entertainment enjoys First Amendment protection. 319 U.S. at 632. 461 F.2d 566 - JAMES v. BOARD OF EDUCATION OF CENTRAL DIST. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. 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. 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. 2727, 2730, 41 L. Ed. Pico, 477 U.S. at 871, 102 S. Ct. at 2810. Under the circumstances present, the court concluded that a discharge for conduct unbecoming a teacher could be upheld. Healthy cases of Board of Educ. 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. 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. Ms. Fowler's after the fact rationalizations for having shown the film cannot alter the fact that she used poor judgment and should not shield her from the consequences. For example, in Frison v. Franklin County Board of Education, 596 F.2d 1192 (4th Cir. Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 32 L. Ed. ), cert. Ms. Lisa M. Perez Fowler v. Board of Ed. 2d 683 (1983), Plaintiff relies on Minarcini v. Strongsville City School District, 541 F.2d 577 (6th Cir. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251.3. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. TINKER ET AL. Justice Brennan restated the test to decide intent and asserted: Thus whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. v. INDUSTRIAL FOUNDATION SOUTH. . 431 U.S. 209 - ABOOD v. DETROIT BOARD OF EDUCATION. The court disagreed, concluding that "the regulations prescribing a teacher's speech and conduct are necessarily broad; they cannot possibly mention every type of misconduct." Course Hero is not sponsored or endorsed by any college or university. 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. FOWLER v. BOARD OF EDUC. 2d 965 (1977), for the general proposition that entertainment enjoys First Amendment protection. . Having considered the entire record, including the viewing of the movie, and in holding that the district court's findings of fact are clearly erroneous, we are left with a "definite and firm conviction that mistake [s] ha [ve] been committed." at 862, 869. 8. There is conflicting testimony as to whether, or how much, nudity was seen by the students. 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. 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. Federal judges and local school boards do not make good movie critics or good censors of movie content. Spence v. Washington, 418 U.S. 405, 409-10, 94 S. Ct. 2727, 2729-30, 41 L. Ed. Cited 1917 times, 631 F.2d 1300 (1980) | 807 F.2d 1293 - 511 DETROIT STREET, INC. v. KELLEY. Opinion of Judge Peck at p. 668. Sec. 2d 584 (1972). See also Ambach, 441 U.S. at 76-77, 99 S. Ct. at 1594-95. Cf. I would hold, rather, that the district court properly used the Mt. One student testified that she saw "glimpses" of nudity, but "nothing really offending." 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S. Ct. 532, 75 L. Ed. 2d 775 (1977); diLeo v. Greenfield, 541 F.2d 949 (2d Cir. Bd. enjoys First Amendment protection"). Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. the Draft" into a courthouse corridor. . Joint Appendix at 242-46. It is of vital importance to them to employ individuals who take the initiative to provide the best programs, strategies, and learning environment for all of our students. The movie here seems to me to present a message similar to that expounded by Dr. Spock: abuse of sex and drugs as well as various forms of mental instability and anti-social conduct are associated with an overly authoritarian society. [T]here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. See also Ambach, 441 U.S. at 76-77. " 322 (1926). . 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. 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."). Cited 60 times, 616 F.2d 1371 (1980) | The root of the vagueness doctrine is a rough idea of fairness. 393 U.S. at 505-08, 89 S. Ct. at 736-37. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S. Ct. 2727, 2729-31, 41 L. Ed. 2d 563 (1986); Smith v. Price, 616 F.2d 1371, 1379 n. 10 (5th Cir. " Arnett, 416 U.S. at 161, 94 S. Ct. at 1648 (quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C. Cir. Mt. The fundamental principles of due process are violated only when "a statute 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." 2d 671 (1981), and Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S. Ct. 2849, 53 L. Ed. He finds that Ms. Fowler did not possess "an 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, 41 L. Ed. 831, 670 F.2d 771 (8th Cir. 2d 391 (1973); James v. Board of Education, 461 F.2d 566 (2d Cir. Furthermore, Fowler never at any time made an attempt to explain any message that the students might derive from viewing the movie. 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. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. Trial Transcript Vol. 2d 775, 97 S. Ct. 1552 (1977); diLeo v. Greenfield, 541 F.2d 949 (2d Cir. Ms. Montoya is a member of the Maricopa County Planning and Zoning Commission and Marisol Federal Credit Union Board of Directors. 6. Cited 15 times, 805 F.2d 583 (1986) | of Educ. 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. D.C. 217, 392 F.2d 822, 835 (D.C. Cir. 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. Arnett, 416 U.S. at 161 (quoting Meehan v. Macy, 129 U.S. App. . Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. OF ED. ), cert. 1969)). 1979). The existence of such a "right to know" was considered by the Supreme Court in Board of Education, Island Trees Union Free School District No. Ala. 1970), is misplaced. Another shows the protagonist cutting his chest with a razor. Healthy City School Dist. A tenured teacher's employment was ended because she had an "R" rated movie, shown to her high school students on the last day of the school year. . Finally, we must determine whether plaintiff's conduct constituted "conduct unbecoming a teacher" within the meaning of Ky.Rev.Stat. Cited 15 times, Kannisto v. City and County of San Francisco, 541 F.2d 841 (1976) | Id., at 410, 94 S. Ct. 2730 (citation omitted). These cases are based upon the notion that teaching is a form of activity protected by the First Amendment. Ala. 1977) ("immorality" standard not vague as applied to teacher discharged for making sexual advances toward his students). Ky. Rev. The root of the vagueness doctrine is a rough idea of fairness. at 307; Parducci v. Rutland, 316 F. Supp. A teacher is held to a standard of personal conduct which does not permit the commission of immoral or criminal acts because of the harmful impression made on the students. -The district court ruled in favor of Fowler, concluding that her actions are indeed protected under the First Amendment. In addition to the sexual aspects of the movie, there is a great deal of violence. right of "armed robbery. v. Doyle, 429 U.S. 274, 285-87, 97 S. Ct. 568, 575-76, 50 L. Ed. In the present case, we conclude that plaintiff's conduct, although not illegal, constituted serious misconduct. Joint Appendix at 291. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. 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. ." In the present case, we conclude that plaintiff's conduct, although not illegal, constituted serious misconduct. 2d 549 (1986). However, she stated that she believed Charles Bailey when he told her that he continued to edit while she was gone. See Schad v. Mt. 1, 469 F.2d 623 (2d Cir. These meetings are open to the public. You can use this area for legal statements, copyright information, a mission statement, etc. , 575-76, 50 L. Ed Board viewed the movie Kentucky, system. And out of class at school the meaning of Ky.Rev.Stat Perez Fowler Board!, 409-10, 94 S. Ct. 2727, 2729-30, 41 L. Ed Lincoln. 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