Opinion of Judge Peck at p. 668. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. 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. 2730 (citation omitted). This segment of the film was shown in the morning session. One scene involves a bloody battlefield. Joint Appendix at 83, 103, 307. Fowler v. Board of Education of Lincoln County, KY Teacher's showing of Pink Floyd: The Wall was not connected with the curriculum. In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. Joint Appendix at 82-83. United States District Courts. at 576. at 1594-95. Consequently, the focus of our inquiry is whether Fowler's conduct was constitutionally protected. The Supreme Court in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 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. denied, 430 U.S. 931, 97 S.Ct. at 177, 94 S.Ct. 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." See also In re Matter of Certain Complaints Under Investigation, 783 F.2d 1488, 1512-13 (11th Cir.) 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. Having considered the entire record, including the viewing of the movie, which we describe as gross and bizarre and containing material completely unsuitable for viewing by a classroom of students aged fourteen to seventeen, we conclude that such conduct falls within the concept of conduct unbecoming a teacher under Kentucky law. Make your practice more effective and efficient with Casetexts legal research suite. She introduced a controversial and sexually explicit movie into a classroom of adolescents without preview, preparation or discussion. Summary of this case from Fowler v. Board of Education of Lincoln County. Healthy, 429 U.S. at 282-84, 97 S.Ct. However, not every form of conduct is protected by the First Amendment right of free speech. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. Plaintiff relies on Minarcini v. Strongsville City School District, 541 F.2d 577 (6th Cir. 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. 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. 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. 1987) 105 Geller v. Markham, 635 F.2d 1027 (1980) 106 Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979) 108 Knight v. Board of Regents of University of State of New York, Under circumstances such as these, I cannot conclude that Fowler possessed "[a]n intent to convey a particularized message" to her students. 1633, 40 L.Ed.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. of Educ.. (opinion of Powell, J.) . Healthy burden. 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. Fowler v. Board of Education of Lincoln County, (1978) 819 F.2d 657 Management Resources: . Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. Finally, we must determine whether plaintiff's conduct constituted "conduct unbecoming a teacher" within the meaning of Ky.Rev.Stat. Only three justices agreed that students possess a constitutionally protected entitlement to access to particular books in the school's library. ), cert. I would hold, rather, that the district court properly used the Mt. . 1985), rev'd in part on other grounds, ___ U.S. ___, 106 S.Ct. 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. What one judge sees as "gross and bizarre," another may find, as did District Judge Scott Reed below, mild and not very "sexually suggestive.". Sec. The dissent relies upon Schad v. Mt. 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. 106 S.Ct. Connect with the definitive source for global and local news. Justice Brennan restated the test to decide intent and asserted: Pico, 477 U.S. at 871, 102 S.Ct. Counts v. Cedarville School District Books put on reserve in the library must be so because of clear violation of obscenity rules. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. ." Book Board of Education Policies Section 6000 Instruction . Click the citation to see the full text of the cited case. High School (D. . In its opinion, the district court relied upon the analytical framework provided by the Supreme Court in Mt. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. 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. 2799, 73 L.Ed.2d 435 (1982). The vagueness doctrine requires that a statute proscribing certain conduct must be drafted "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." The board then retired into executive session. . Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. Rather, she had it shown for the purpose of keeping her students occupied during a noninstructional day while she was involved in posting grades on report cards. 161.790(1)(b) is not unconstitutionally vague. Sec. The two appeals court judges in the majority upheld the firing for different reasons. The court disagreed, concluding that "[t]he regulations prescribing a teacher's speech and conduct are necessarily broad; they cannot possibly mention every type of misconduct." 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). The cases just discussed demonstrate that conduct is protected by the First Amendment only when it is expressive or communicative in nature. 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. 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. The board then retired into executive session. demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. 1977) ("immorality" standard not vague as applied to teacher discharged for making sexual advances toward his students). Id., at 583. Id., at 1116. Mt. 393 U.S. at 505-08, 89 S.Ct. 831, 670 F.2d 771 (8th Cir. Plaintiff argues that Ky.Rev.Stat. View Andrew Tony Fowler Full Profile . Joint Appendix at 321. Whether a certain activity is entitled to protection under the First Amendment is a question of law. 1976) (insubordinate acts were clearly within scope of regulation governing "unofficerlike conduct"; regulation not vague as applied), cert. Under the circumstances present, the court concluded that a discharge for conduct unbecoming a teacher could be upheld. 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. 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. 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. Furthermore, Fowler never at any time made an attempt to explain any message that the students might derive from viewing the movie. 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, Respectively, As a Member of the Board of Education of Lincoln County, Kentucky, Defendants- Appellants, Cross-Appellees. 2176, 68 L.Ed.2d 671 (1981), and Zacchini v. Scripps-Howard Broadcasting casting Co., 433 U.S. 562, 97 S.Ct. 215, 221, 97 L.Ed. Ms. Francisca Montoya is a lifelong resident of Maricopa County and advocate of public education. at 3165. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S.Ct. 1, Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. Ms. Fowler later told school officials she believed the movie has significant value because it deals with personal alienation and the dangers of repressive educational systems. 322 (1926). 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. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251. Id., at 159, 94 S.Ct. Our analysis is guided by two recent decisions by the Kentucky Supreme Court. Subscribers are able to see the revised versions of legislation with amendments. In my view this case should be decided under the "mixed motive" analysis of Mt. 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. School board must not censor books. Id., at 863-69, 102 S.Ct. 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. She said the store clerk who rented it to her told her it contained some nudity but also dealt with social issues of importance to teen-agers. These cases do not lend themselves to the reverse purpose of defining what kind of communication can not be expressive. 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. Ky.Rev.Stat. Id. at 736-37. 12 (Board) to dismiss her from her teaching position on the grounds of immorality. It is also undisputed that she left the room on several occasions while the film was being shown. 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. 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. Id. VLEX uses login cookies to provide you with a better browsing experience. 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. Another shows police brutality. 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. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. 352, 356 (M.D.Ala. I at 101. FRANKLIN COUNTY BOARD OF EDUCATION. 1731, 1734-35, 20 L.Ed.2d 811 (1968)); see also Anderson v. Evans, 660 F.2d 153, 157 (6th 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. One student testified that she saw "glimpses" of nudity, but "nothing really offending." 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. Accordingly, we conclude that the statute is not unconstitutionally vague as applied to Fowler's conduct. 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." 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. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. 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. WASHINGTON (AP) _ The Supreme Court today rejected an appeal by a Kentucky public high school teacher fired for showing her class Pink Floyd - The Wall, an R-rated movie about a troubled rock star. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. 532, 535-36, 75 L.Ed. Moreover, in Spence. Another shows the protagonist cutting his chest with a razor. 1589, 1594-95, 60 L.Ed.2d 49 (1979)). Emergency Coalition v. U.S. Dept. Joint Appendix at 132-33. at 287, 97 S.Ct. 1969); Dean v. Timpson Independent School District, 486 F. Supp. The board then retired into executive session. District Court Opinion at 23. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. Similarly, his finding that Fowler formed an opinion regarding the significance of the film during the morning showing is clearly erroneous. 39 Ed. Sch. Rather, the proper focus of our inquiry is whether Fowler was engaged in expressive activity protected by the First Amendment, and nothing in the record would indicate that she was so engaged. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. Joint Appendix at 83-84. Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing attempt was not sufficient to preclude the students from seeing the nudity. Board of Education (SBE) to be aligned with those standards. '", upholding against vagueness challenge dismissal standard of "conduct unbecoming a teacher". Plaintiff cross-appeals on the ground that K.R.S. Another shows the protagonist cutting his chest with a razor. We find this argument to be without merit. at 2806-09. Plaintiff cross-appeals from the holding that K.R.S. Sterling, Ky., for defendants-appellants, cross-appellees. Fowler v. Board of Education of Lincoln County Download PDF Check Treatment Summary 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 Summary of this case from Pucci v. Michigan Supreme Court In the present case the district court concluded that Mrs. Fowler was entitled to the protection of the First Amendment while acting as a teacher. . 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the worlds leading publishers. See Tinker, 393 U.S. at 506, 89 S.Ct. 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. Joint Appendix at 132-33. 2537, 91 L.Ed.2d 249 (1986). Jacqueline Fowler had worked in the Lincoln County, Ky., school system for 14 years when she was fired in July 1984 for insubordination and conduct unbecoming a teacher. re-employment even in the absence of the protected conduct." She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. of Education. 1552, 51 L.Ed.2d 775 (1977); diLeo v. Greenfield, 541 F.2d 949 (2d Cir. 1178, 87 L.Ed. James W. Williams, III, Rankin, Baker and Williams, Stanford, Ky., Robert L. Chenoweth, Bryan, Fogle and Chenoweth, Mt. 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. Ms. Montoya's professional experience spans 25 plus years in non-profit management, government relations, and community and economic development. Among the "special circumstances" which must be considered in defining the scope of First Amendment protection inside the classroom is the "inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system." at 576. 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. at 1182. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. 3159, 3164, 92 L.Ed.2d 549 (1986) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77, 99 S.Ct. at 737). I at 108-09. Another scene shows children being fed into a giant sausage machine. 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.". 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. See, e.g., Mt. At the bench trial in the district court, Fowler repeated her contention that she believed the movie contained important, socially valuable messages. 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. There is conflicting testimony as to whether, or how much, nudity was seen by the students. On cross-examination, Charles Bailey testified that Mrs. Fowler told him to open the file folder while editing after Candler entered the room. 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. The Supreme Court has consistently recognized the importance of the exercise of First Amendment rights in the context of public schools. 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. 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. See, e.g., Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. -The district court ruled in favor of Fowler, concluding that her actions are indeed protected under the First Amendment. Cmty. Joint Appendix at 265-89. Plaintiff cross-appeals on the ground that K.R.S. This court, in my opinion, should not offer an advisory opinion as to what constitutes an intent to communicate and how much knowledge of the content of a presentation is needed before it can be embraced as one's own expression. Finally, the district court concluded that K.R.S. Healthy case as precedent to decide whether the school board in that case acted properly in removing books from the school library. of Educ. He did so by attempting to cover the 25"' screen with an 8 1/2"' by 11"' letter-sized file folder. 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." In addition to the sexual aspects of the movie, there is a great deal of violence. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards.