Subscribers are able to see a visualisation of a case and its relationships to other cases. See, e.g., Stern v. Shouldice, 706 F.2d 742 (6th Cir. Because we conclude that plaintiff's discharge may be upheld under the charge of conduct unbecoming a teacher, we need not reach this issue. 1970), is misplaced. Joint Appendix at 129-30. 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. In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. After the movie was viewed by the superintendent and members of the Lincoln County Board of Education, proceedings were instituted to terminate Fowler's contract. There is conflicting testimony as to whether, or how much, nudity was seen by the students. 2176, 68 L.Ed.2d 671 (1981), and Zacchini v. Scripps-Howard Broadcasting casting Co., 433 U.S. 562, 97 S.Ct. re-employment even in the absence of the protected conduct." at 736-37. 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 day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. the Draft" into a courthouse corridor. . of Educ. There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. '", upholding against vagueness challenge dismissal standard of "conduct unbecoming a teacher". 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. Although Judge Peck's opinion concedes that "the school board clearly expressed displeasure with the anti-establishment focus of the film," he argues nonetheless that the board's "objections to the `immoral' content of the film were intertwined with constitutionally permissible objections to the film's above mentioned vulgarity and unsuitability for the student age group. 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. Joint Appendix at 120-22. Connect with the definitive source for global and local news. On its distinctive facts, Fowler v. Board of Education Lincoln County, Kentucky' is almost ideally suited as a vehicle for reex- amining some of the "deeper" issues associated with in-school speech of public high school teachers in particular and with free speech law in general. 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. [54] JOHN W. PECK, Senior Circuit Judge, concurring. The District Court held that the school board failed to carry this Mt. I would hold, rather, that the district court properly used the Mt. at 177, 94 S.Ct. 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. See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. San Francisco Unified School District and County Office of Education Board Policy 6161.11 Supplementary Instructional Materials . at 2810. 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 . She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. at 736 (wearing black armband was conduct akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. "To regard teachers in our entire educational system, from the primary grades to the university as the priests of our democracy is therefore not to indulge in hyperbole." Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. In fact, Mrs. Fowler was not discharged because she entertained her students: she was discharged because the school board did not like the content of the movie. Joint Appendix at 132-33. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. Sec. 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. Boring v. Buncombe County Board of Education (136 E 3 d 364 [1998]), the Fourth Circuit Court, citing the 1988 decision Hazelwood v. Kulhmeir (484 U.S. 260), found Spence, 418 U.S. at 411, 94 S.Ct. 1974), a teacher was discharged for public displays of deviate sexual behavior under a statute proscribing "conduct unbecoming a teacher." Healthy cases of Board of Educ. 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. I believe a teacher should be similarly protected by the First Amendment whether she is participating in an instructional or non-instructional day. 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. A number of courts have rejected vagueness challenges when an employee's conduct clearly falls within a statutory or regulatory prohibition. Joint Appendix at 291. United States District Court (Columbia), United States District Courts. 2799, 73 L.Ed.2d 435 (1982), and Bethel School Dist. Subscribers are able to see a list of all the cited cases and legislation of a document. Id. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. Bd. 733, 736, 21 L.Ed.2d 731 (1969). Judge Milburn states further that "plaintiff's conduct in having the movie shown cannot be considered expressive or communicative. 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. 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 . 1968), modified, 425 F.2d 469 (D.C. 693, 58 L.Ed.2d 619 (1979); Mt. Ms. Fowler, a former teacher of the year at the school who taught civics and Latin, said she did not watch the movie herself before showing it to the students. . Id., at 839-40. Healthy City 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. 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. 1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir. 1979); Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir. Healthy City School Dist. Joint Appendix at 308-09. VLEX uses login cookies to provide you with a better browsing experience. of Education. 675, 683-84, 17 L.Ed.2d 629 (1967) (discussing importance of academic freedom). Rehearing and Rehearing En Banc Denied July 21, 1987. 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. As herein above indicated, I concur in the result reached in Judge Milburn's opinion. October 16, 1986. of Lincoln County, Ky.. argues make section 110.06(F) vague: "health," "safety," and "welfare. 2294, 2299, 33 L.Ed.2d 222 (1972); 511 Detroit Street, Inc. v. Kelley, 807 F.2d 1293, 1295 (6th Cir. Subscribers are able to see a list of all the documents that have cited the case. 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. . at 3165. Id., at 862, 869, 102 S.Ct. at 2730. In addition to the sexual aspects of the movie, there is a great deal of violence. of Lincoln Cty .. at 1648 (quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C. Cir. 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 cases just discussed demonstrate that conduct is protected by the First Amendment only when it is expressive or communicative in nature. The board then retired into executive session. We do not intimate that a teacher is entitled to the protection of the First Amendment only when teaching. High School (D. . Joint Appendix at 83, 103, 307. applying Arnett and Wishart in upholding dismissal standard of "conduct unbecoming a teacher", Fowler v. Board of Education of Lincoln County. Sterling, Ky., for defendants-appellants, cross-appellees. The school board stated insubordination as an alternate ground for plaintiff's dismissal. Under the Mt. The Supreme Court has consistently recognized the importance of the exercise of First Amendment rights in the context of public schools. Joint Appendix at 83, 103, 307. 1899, 36 L.Ed.2d 391 (1973); James v. Board of Education, 461 F.2d 566 (2d Cir. . In January, 1993, Mr. Fowler received a letter from District's director that advised him to get a dairy specialist and a chemist to check the water and feed and have tests run. This salary is 155 percent higher than average and 189 percent higher than median salary in FRANKLIN . See also In re Matter of Certain Complaints Under Investigation, 783 F.2d 1488, 1512-13 (11th Cir.) In Spence, the undisputed facts established that the appellant hung a United States flag with a peace symbol affixed to it because he "wanted people to know that [he] thought America stood for peace." 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. a statute that required state employees, including teachers, to take a loyalty oath forswearing communism); Fowler v. Bd. 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." 2849, 53 L.Ed.2d 965 (1977), for the general proposition that entertainment enjoys First Amendment protection. of Treasury, Civil Action No. But a panel of the 6th U.S. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. 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 p. 664. Id., at 1116. Plaintiff Fowler received her termination notice on or about June 19, 1984. She argued that the statute governing her demotion, which required teachers to maintain discipline and encourage morality, failed to give adequate notice that her conduct was a ground for discipline. This segment of the film was shown in the morning session. She introduced a controversial and sexually explicit movie into a classroom of adolescents without preview, preparation or discussion. The dissent accurately points out that "the school board did not like the content of the movie" but their objections to the "immoral" content of the film were intertwined with constitutionally permissible objections to the film's above mentioned vulgarity and unsuitability for the student age group and cannot survive the "but for" test of Mt. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. Accordingly, we conclude that the statute is not unconstitutionally vague as applied to Fowler's conduct. 1979). She testified that she would show an edited. 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." at 1594-95. 2730 (citation omitted). 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. ", Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing. Sec. See also Fraser, 106 S.Ct. Consequently, the focus of our inquiry is whether Fowler's conduct was constitutionally protected. 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. As Corrected November 6, 1986. The Mt. . 5//28he wds employed by the % "incoln ounty 5//28chool istrict in $ !entucky. 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. Andrew Tony Fowler Overview. They also found the movie objectionable because of its sexual content, vulgar language, and violence. 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. 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. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual." Id., at 1193. Finally, we must determine whether plaintiff's conduct constituted "conduct unbecoming a teacher" within the meaning of Ky.Rev.Stat. 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. School officials testified that they objected to the movie because it promoted values which were described as immoral, antieducation, antifamily, antijudiciary, and antipolice. 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." 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 746 (1948), and Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 568, 50 L.Ed.2d 471 (1977). She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. Her having the movie shown under the circumstances involved demonstrates a blatant lack of judgment. 1976) (finding no constitutional violation in the Board's exercise of curriculum and textbook control, while, at the same time, determining that the Board had wrongly removed books from the library). Another shows the protagonist cutting his chest with a razor. After the movie was viewed by the superintendent and members of the Lincoln County Board of Education, proceedings were instituted to terminate Fowler's contract. The more important question is not the motive of the speaker so much as the purpose of the interference. 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 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. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 04-3524. 397 (M.D.Ala. The board then retired into executive session. Pink Floyd is the name of a popular rock group. As those cases recognize, the First . It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. School board must not censor books. 693, 58 L.Ed.2d 619 (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). Emergency Coalition v. U.S. Dept. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251. owler wds fired in # uly 1984 dnd dppedled on the ground thdt her employment wds termindted in violdtion of her irst mendment rights dnd conduct unbecoming d . 1504, 1512-13, 84 L.Ed.2d 518 (1985). of Educ.. (opinion of Powell, J.) 161.790(1)(b) is not unconstitutionally vague. 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. The justices, without comment, let stand a ruling that the teachers free- expression rights were not violated. 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Community school District and County Office of Education, 598 F.2d 535, 539-42 ( 10th Cir )... 1984 for insubordination and conduct unbecoming a teacher '' protected conduct. is unconstitutionally! ; Cary v. Board of Education Board Policy 6161.11 Supplementary Instructional Materials see a list of all the cited and.