United States Court of Appeals (6th Circuit), Before MERRITT and MILBURN, Circuit Judges, and PECK; MILBURN; JOHN W. PECK; MERRITT. The board viewed the movie once in its entirety and once as it had been edited in the classroom. It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. You also get a useful overview of how the case was received. Another scene shows children being fed into a giant sausage machine. Because the intent to express was coupled with a great likelihood that the message would be understood, the Court concluded that the conduct was entitled to protection under the First Amendment. She made no attempt at any time to explain the meaning of the movie or to use it as an educational tool. The more important question is not the motive of the speaker so much as the purpose of the interference. Similarly, in Tinker, the uncontroverted evidence showed that the students who wore the black armbands were engaged in an expression of opposition to the Vietnam war, which the Court concluded was akin to "pure speech." They also found the movie objectionable because of its sexual content, vulgar language, and violence. Decided June 1, 1987. Joint Appendix at 132-33. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. The lm includes violent Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. v. Stachura, 477 U.S. 299, 304-05, 106 S.Ct. Sterling, Ky., for defendants-appellants, cross-appellees. The Court in Mt. The board viewed the movie once in its entirety and once as it had been edited in the classroom. Bd. v. Fraser further supported the school board's authority to take action against conduct it considered vulgar and offensive and disruptive of the educational process. 161.790(1)(b) is not unconstitutionally vague. 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. We emphasize that our decision in this case is limited to the peculiar facts before us. Under the circumstances of that case, the court concluded that plaintiff's discharge was not constitutionally offensive. 1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir. The court went on to view this conduct in light of the purpose for teacher tenure. 2176, 2181, 68 L.Ed.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. 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. One student testified that she saw "glimpses" of nudity, but "nothing really offending." 39 Ed. 1731, 1734-35, 20 L.Ed.2d 811 (1968)); see also Anderson v. Evans, 660 F.2d 153, 157 (6th Cir. On July 10, 1984, plaintiff Fowler appeared with counsel at the administrative hearing. 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. '", upholding against vagueness challenge dismissal standard of "conduct unbecoming a teacher". Writing for the Court, Justice Harlan stated that "while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. The accommodation of these sometimes conflicting fundamental values has caused great tension, particularly when the conflict arises within the classroom. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. 1178, 1183, 87 L.Ed. Connect with the definitive source for global and local news. Subscribers are able to see the revised versions of legislation with amendments. Healthy. . See, e.g., Fowler v. Board of Education of Lincoln County, Kentucky, 819 F.2d 657 (6th 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. The single most important element of this inculcative process is the teacher. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. Sec. 1953, 1957, 32 L.Ed.2d 584 (1972). The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. Joint Appendix at 114, 186-87. 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 day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. See also In re Matter of Certain Complaints Under Investigation, 783 F.2d 1488, 1512-13 (11th Cir.) . See also Ambach, 441 U.S. at 76-77, 99 S.Ct. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. finding that a prohibition on "conduct unbecoming a teacher" was constitutional and explaining that the "most conscientious of codes that define prohibited conduct of employees includes 'catchall' clauses prohibiting employee 'misconduct,' 'immorality,' or 'conduct unbecoming. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. Joint Appendix at 83, 103, 307. 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. I at 108-09. Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge. 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. Joint Appendix at 127. Opinion. 746 (1948), and Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 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 two appeals court judges in the majority upheld the firing for different reasons. 1986). She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. Therefore, he said, her decision to permit the students to see the film is not a form of expression entitled to protection under the First Amendment., Judge John W. Peck, who also said the teacher was fired lawfully, said the school board acted properly in taking action against conduct it considered vulgar and offensive and disruptive of educational process.. demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. at 2810. 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. 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." Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. 1976), for the proposition that students in a public school have a constitutionally protected right "to receive information which they and their teachers desire them to have." Judge H. Ted Milburn said Ms. Fowlers conduct in having the movie shown clearly is not speech in the traditional sense of the expression of ideas through use of the spoken or written word., Milburn said Ms. Fowler did not intend to convey a particular message by showing the film. United States Courts of Appeals. denied, 430 U.S. 931, 97 S.Ct. Book Board of Education Policies Section 6000 Instruction . She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. Click the citation to see the full text of the cited case. Joint Appendix at 265-89. re-employment even in the absence of the protected conduct." Subscribers are able to see any amendments made to the case. Sec. Jarman v. Williams, 753 F.2d 76, 77-78 (8th Cir. Tenured teacher, Jacqueline Fowler showed this movie to her freshman through junior high school students (ages 14-17) on 5-31-84 based on a recommendation of one of her 15-year-old students that previously viewed the movie. denied, ___ U.S. ___, 106 S.Ct. 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. On the list of instructional materials approved by the Tulare County Board of Education (search at www.erslibrary.org), or 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. 1969); Dean v. Timpson Independent School District, 486 F. Supp. at 1182. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. denied, 411 U.S. 932, 93 S.Ct. 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. Joint Appendix at 129-30. In Cohen v. California, 403 U.S. 15, 91 S.Ct. Fowler v. Board of Education of Lincoln County, (1978) 819 F.2d 657 Management Resources: 1977) ("immorality" standard not vague as applied to teacher discharged for making sexual advances toward his students). Whether a certain activity is entitled to protection under the First Amendment is a question of law. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it." See Jarman, 753 F.2d at 77. 2537, 91 L.Ed.2d 249 (1986); Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1113 (5th Cir. The board viewed the movie once in its entirety and once as it had been edited in the classroom. The objections to the method of communication in the film at issue in the present case cannot be seen as a sham or cover-up but as valid objections to a film the board thought inappropriate for classroom viewing. Mt. Her having the movie shown under the circumstances involved demonstrates a blatant lack of judgment. Sterling, Ky., F.C. Id., at 839. 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. Advanced A.I. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. 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. In the context of statutory provisions governing employee discipline, the Supreme Court has recognized the inherent difficulty in drawing statutes which are broad enough to cover a wide range of conduct, yet narrow enough to give fair warning. Summary of this case from Fowler v. Board of Education of Lincoln County. School board must not censor books. 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. But a panel of the 6th U.S. Rehearing and Rehearing En Banc Denied July 21, 1987. 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". 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. 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 She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. 215, 221, 97 L.Ed. United States District Court (Columbia), United States District Courts. 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. We do not intimate that a teacher is entitled to the protection of the First Amendment only when teaching. See Minarcini v. Strongsville City School Dist., 541 F.2d 577 (6th Cir. In the present case, it is undisputed that Fowler did not see the movie before she had it shown to her class on the morning of May 31, 1984, a noninstructional day. 403 U.S. at 25, 91 S.Ct. In my view this case should be decided under the "mixed motive" analysis of Mt. Therefore, I would affirm the judgment of the District Court. -The district court ruled in favor of Fowler, concluding that her actions are indeed protected under the First Amendment. 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. At the administrative hearing, several students testified that they saw no nudity. In its opinion, the district court relied upon the analytical framework provided by the Supreme Court in Mt. 719, 15 L.Ed.2d 637 (1966) (sit-in by blacks at "whites only" library), West Virginia State Bd. 1976) (teacher could not successfully contend that "due and sufficient cause" standard did not give notice that improper conduct toward students would result in discipline); Kilpatrick v. Wright, 437 F. Supp. 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. at 287, 97 S.Ct. Id., at 1194. 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. The fundamental principles of due process are violated only when "a statute . This lack of love is the figurative "wall" shown in the movie. Spence, 418 U.S. at 411, 94 S.Ct. See Schad v. Mt. "[I]t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. 1098 (1952). 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. ." 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. 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. 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). 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." of Educ., supra (finding a teacher's communication with a radio station regarding school board policies was constitutionally protected activity); Givhan v. Western Line Consol. San Francisco Unified School District and County Office of Education Board Policy 6161.11 Supplementary Instructional Materials . Spence, 418 U.S. at 410, 94 S.Ct. . Id., at 159, 94 S.Ct. 568, 50 L.Ed.2d 471 (1977). On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. High School (D. . 1985) (nonexpressive dancing constitutes conduct not entitled to protection of the First Amendment). 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. of Educ. Monroe v. State Court of Fulton County, 739.F.2d 568, 571 (11th Cir. 2294, 2299, 33 L.Ed.2d 222 (1972); 511 Detroit Street, Inc. v. Kelley, 807 F.2d 1293, 1295 (6th Cir. On its distinctive facts, Fowler v. 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