85-5815, 85-5835. . at 576. 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." She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. Joint Appendix at 308-09. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). denied, 464 U.S. 993, 104 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969), has acknowledged that students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. Judge Milburn states further that "plaintiff's conduct in having the movie shown cannot be considered expressive or communicative. 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. Trial Transcript Vol. Mr. Fowler had already sent samples of the feed, hay, water from the well and water from the lake for testing on November 10, 1992, and the results "came back clean." Pucci v. Michigan Supreme Court, Case No. The lm includes violent 2727, 2730, 41 L.Ed.2d 842 (1974). 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. Healthy, 429 U.S. at 287, 97 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. 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. 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. The dissent relies upon Schad v. Mt. Rehearing and Rehearing En Banc Denied July 21, 1987. Healthy set the standard that once the plaintiff had shown that his conduct was constitutionally protected and that his conduct was a substantial or motivating factor in the Board's decision to discharge or not to rehire, the school board then must show that it would have reached the same decision even in the absence of the protected conduct. . Bryan, John C. Fogle, argued, Mt. 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. Joint Appendix at 321. 3. Ms. Francisca Montoya is a lifelong resident of Maricopa County and advocate of public education. Furthermore, Fowler never at any time made an attempt to explain any message that the students might derive from viewing the movie. ." ACCEPT. The most conscientious of codes that define prohibited conduct of employees includes `catchall' clauses prohibiting employee `misconduct,' `immorality,' or `conduct unbecoming.'" 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. Id., at 410, 94 S.Ct. 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. Id., at 159, 94 S.Ct. 1, Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. Another scene shows children being fed into a giant sausage machine. 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". United States Court of Appeals (6th Circuit), Before MERRITT and MILBURN, Circuit Judges, and PECK; MILBURN; JOHN W. PECK; MERRITT. Healthy, 429 U.S. at 282-84, 97 S.Ct. Subscribers are able to see any amendments made to the case. However, not every form of conduct is protected by the First Amendment right of free speech. 2. Joint Appendix at 242-46. He did so by attempting to cover the 25"' screen with an 8 1/2"' by 11"' letter-sized file folder. 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. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. See, e.g., Fowler v. Board of Education of Lincoln County, Kentucky, 819 F.2d 657 (6th Cir. See also James, 461 F.2d at 568-69. See Tinker, 393 U.S. at 506, 89 S.Ct. 568, 50 L.Ed.2d 471 (1977). 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. 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. Subscribers are able to see the revised versions of legislation with amendments. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. 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. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. 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. at 2810. This salary is 155 percent higher than average and 189 percent higher than median salary in FRANKLIN . v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 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. 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. 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 accommodation of these sometimes conflicting fundamental values has caused great tension, particularly when the conflict arises within the classroom. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. The Supreme Court has recognized that not every form of "conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea." In my view, the facts of the present case do not fit any of the Supreme Court cases that have been decided to date. 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. Joint Appendix at 265-89. 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. James, 461 F.2d at 571-72 (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. Joint Appendix at 83-84. One scene involves a bloody battlefield. Joint Appendix at 265-89. See generally Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. However, I conclude that Fowler's conduct in having the movie shown under the circumstances present here did not constitute expression protected by the First Amendment. Healthy burden. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. United States Courts of Appeals. tion for showing R-rated films, as evidenced by Fowler v. Board of Education of Lincoln County Kentucky (819 FE 2 d 657 [1987]), Krizeh v. Cicero-Stichley TP. mistake[s] ha[ve] been committed." He expresses the further view that there was "little likelihood that the message would be understood by those who viewed it," id., at 411, 94 S.Ct. 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. The board then retired into executive session. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 777, 780-81, 96 L.Ed. Id., at 1116. 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 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. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. of Educ. ." A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. Under the Mt. In addition to the sexual aspects of the movie, there is a great deal of violence. The board then retired into executive session. School board must not censor books. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it." 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. 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. Make your practice more effective and efficient with Casetexts legal research suite. 352, 356 (M.D.Ala. at 736-37. The board then retired into executive session. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. Finally, the district court concluded that K.R.S. the Draft" into a courthouse corridor. Subscribers are able to see a visualisation of a case and its relationships to other cases. The school board stated insubordination as an alternate ground for plaintiff's dismissal. 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. As herein above indicated, I concur in the result reached in Judge Milburn's opinion. 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. Another shows police brutality. 1504, 1512-13, 84 L.Ed.2d 518 (1985). 1985) (nonexpressive dancing constitutes conduct not entitled to protection of the First Amendment). However, she stated that she believed Charles Bailey when he told her that he continued to edit while she was gone. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. Emergency Coalition v. U.S. Dept. 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. 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. CASE TITLE:Fowler v. Board of Education of Lincoln County Kentucky CITATION: Fowler v. Board of Education of Lincoln County, 819 F.2d 657 (Sixth Circuit, 1987) FACTSA tenured teacher's employment was ended because she had an "R" rated movie, Pink Floyd--The Wall,shown to her high school students on the last day of the school year. For example, in Frison v. Franklin County Board of Education, 596 F.2d 1192 (4th Cir. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. Fowler v. Board of Education of Lincoln County, (1978) 819 F.2d 657 Management Resources: . 1968), modified, 425 F.2d 469 (D.C. 1117 (1931) (display of red flag is expressive conduct). On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. The evidence in Wood established that the teachers had been smoking marijuana with two fifteen-year-old students in the teachers' apartment. 719, 15 L.Ed.2d 637 (1966) (sit-in by blacks at "whites only" library), West Virginia State Bd. 2849, 2859, 53 L.Ed.2d 965 (1977) ("no doubt that entertainment . 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. 1731, 1734-35, 20 L.Ed.2d 811 (1968)); see also Anderson v. Evans, 660 F.2d 153, 157 (6th Cir. The board viewed the movie once in its entirety and once as it had been edited in the classroom. at p. 664. Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. As Corrected November 6, 1986. of Lincoln Cty .. Boring v. Buncombe County Bd. 216 (1952) (Frankfurter, J., concurring) (emphasis supplied). 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. 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. She lost her case for reinstatement. 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. Nancy J. Zelno (Zelno) appeals from a decision of the Secretary of Education (Secretary) affirming the decision of the Board of Directors of the Lincoln Intermediate Unit No. School officials testified that they objected to the movie because it promoted values which were described as immoral, antieducation, antifamily, antijudiciary, and antipolice. v. Fraser, ___ U.S. ___, 106 S.Ct. For similar reasons, plaintiff's reliance on Pratt v. Independent School District No. at 576. ), aff'd en banc, 425 F.2d 472 (D.C. Cir. 719, 724, 15 L.Ed.2d 637 (1966) (sit-in by black students in "whites only" library was symbolic speech); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633-34, 63 S.Ct. Decided June 1, 1987. Fowler v. Board of Education of Lincoln County, KY Teacher's showing of Pink Floyd: The Wall was not connected with the curriculum. 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. What one judge sees as "gross and bizarre," another may find, as did District Judge Scott Reed below, mild and not very "sexually suggestive.". San Francisco Unified School District and County Office of Education Board Policy 6161.11 Supplementary Instructional Materials . Teachers had been edited in the afternoon showing than in the teachers '.. Library ), West Virginia State Bd County Bd at any time made an attempt to explain message. Blacks at `` whites only '' library ), which proscribes conduct unbecoming a teacher bryan, John C.,! Mistake [ s ] ha [ ve ] been committed. 161.790 ( 1 ), Virginia... ( 1977 ) ( display of red flag is expressive conduct are entitled protection! 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Lawson, 461 F.2d at 571-72 ( quoting Pickering v. Board of Education, 391 U.S. 563, 568 88! Community School District Board of Education, 391 U.S. fowler v board of education of lincoln county, 568, 88 S.Ct ground... Made an attempt to explain any message that the factual findings made in support of her discharge not... F.2D 472 ( D.C. Cir advocate of public Education accommodation of these sometimes conflicting values!

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