403 U.S. at 25, 91 S.Ct. 302, 307 (E.D.Tex. Joint Appendix at 83, 103, 307. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. denied, 430 U.S. 931, 97 S.Ct. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. 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. 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. O'Brien, 391 U.S. at 376, 88 S.Ct. On cross-examination, Charles Bailey testified that Mrs. Fowler told him to open the file folder while editing after Candler entered the room. 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". She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. Joint Appendix at 265-89. 1968), modified, 425 F.2d 469 (D.C. 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. 1855, 1858, 75 L.Ed.2d 903 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 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." Id., at 862, 869, 102 S.Ct. Sec. 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. Fraser, 106 S.Ct. District Court Opinion at 23. 1178, 1183, 87 L.Ed. Healthy, 429 U.S. at 287, 97 S.Ct. 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 . I would suggest that the rationale underlying Spence v. Washington (display of flag with peace symbol attached) and other cases cited by Judge Milburn, e.g., Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. Joint Appendix at 308-09. Sterling, Ky., F.C. That method was to use sexual innuendo and sexually explicit material, some profane language, violence, and vulgar images, to tell the story of the film. Sec. Joint Appendix at 198, 201, 207, 212-13, 223, 226, 251. 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 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. enjoys First Amendment protection"). 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. Boring v. Buncombe County Bd. Summary of this case from Fowler v. Board of Education of Lincoln County. a statute that required state employees, including teachers, to take a loyalty oath forswearing communism); Fowler v. Bd. 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." United States Court of Appeals, Sixth Circuit. 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). Sec. Plaintiff Fowler received her termination notice on or about June 19, 1984. 2294, 2299, 33 L.Ed.2d 222 (1972); 511 Detroit Street, Inc. v. Kelley, 807 F.2d 1293, 1295 (6th Cir. "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." She testified that she would show an edited. 1633 (opinion of White, J.) 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. The Court in Mt. The accommodation of these sometimes conflicting fundamental values has caused great tension, particularly when the conflict arises within the classroom. Fowler v. Board of Education of Lincoln County, (1978) 819 F.2d 657 Management Resources: . 6th Circuit. She stated that she did not at any time discuss the movie with her students because she did not have enough time. I at 101. 1980); Russo v. Central School District No. 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 . 568, 575-76, 50 L.Ed.2d 471 (1977), as suggested by Judge Merritt's dissent, particularly when viewed in the context of the post- Mt. 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." v. Pico, 457 U.S. 853, 102 S.Ct. 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. "And our decision in Fowler v. Bd. '", upholding against vagueness challenge dismissal standard of "conduct unbecoming a teacher". 1979). at 573-74. No. 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 at 3165. Healthy cases of Board of Educ. 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. Rehearing Denied January 22, 1987. . Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 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 Mrs. Fowler proved at trial, as Judge Milburn says at page 660 of his opinion, that she was discharged because the board members regarded the movie as "immoral, antieducation, antifamily, antijudiciary, and antipolice." 746 (1948), and Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. Wieman v. Updegraff, 344 U.S. 183, 196, 73 S.Ct. 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. 106 S.Ct. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. ACCEPT. . ." of Educ. Justice Brennan restated the test to decide intent and asserted: Pico, 477 U.S. at 871, 102 S.Ct. Subscribers are able to see the revised versions of legislation with amendments. Fowler testified that she left the classroom on several occasions while the movie was being shown. Pucci v. Michigan Supreme Court, Case No. 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. 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. 216 (1952) (Frankfurter, J., concurring) (emphasis supplied). Id., at 839. This segment of the film was shown in the morning session. The most conscientious of codes that define prohibited conduct of employees includes `catchall' clauses prohibiting employee `misconduct,' `immorality,' or `conduct unbecoming.'" Fowler agreed to allow the movie to be shown, at the students' request, because May 31 was "their treat type of day." These cases do not lend themselves to the reverse purpose of defining what kind of communication can not be expressive. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. In my view, the facts of the present case do not fit any of the Supreme Court cases that have been decided to date. 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." 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. 26 v. Pico, 457 U.S. 853, 102 S.Ct. In the process, she abdicated her function as an educator. of Educ. Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. denied, 409 U.S. 1042, 93 S.Ct. Bryan, John C. Fogle, argued, Mt. 693, 58 L.Ed.2d 619 (1979); Mt. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. 719, 15 L.Ed.2d 637 (1966) (sit-in by blacks at "whites only" library), West Virginia State Bd. Joint Appendix at 113-14. We find this argument to be without merit. 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." San Francisco Unified School District and County Office of Education Board Policy 6161.11 Supplementary Instructional Materials . This segment of the film was shown in the morning session. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. 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. Plaintiff's reliance upon cases grounded in the concept of "academic freedom," e.g., Cooper, 611 F.2d at 1113; Dean, 486 F. Supp. 831, 670 F.2d 771 (8th Cir. High School (D. . Fowler v. Board of Education of Lincoln County, (1978) 819 F.2d 657 Management Resources: Healthy. 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. . 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. at 576. See generally Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. applying Arnett and Wishart in upholding dismissal standard of "conduct unbecoming a teacher", Fowler v. Board of Education of Lincoln County. 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 291. See Minarcini v. Strongsville City School Dist., 541 F.2d 577 (6th Cir. 1178, 87 L.Ed. Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. At the bench trial in the district court, Fowler repeated her contention that she believed the movie contained important, socially valuable messages. 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 132-33. We emphasize that our decision in this case is limited to the peculiar facts before us. 39 Ed. For example, in Frison v. Franklin County Board of Education, 596 F.2d 1192 (4th Cir. at 1648 (quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C. Cir. See also James, 461 F.2d at 568-69. That a teacher does have First Amendment protection under certain circumstances cannot be denied. 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. 1899, 36 L.Ed.2d 391 (1973); James v. Board of Education, 461 F.2d 566 (2d Cir. 2880, 2897, 37 L.Ed.2d 796 (1973)). Moreover, there was a direct connection between this misconduct and Fowler's work as a teacher. . of Lincoln County, Ky.. argues make section 110.06(F) vague: "health," "safety," and "welfare. Id., at 410, 94 S.Ct. 1117 (1931) (display of red flag is expressive conduct). Joint Appendix at 120-22. Click the citation to see the full text of the cited case. She lost her case for reinstatement. 525, 542, 92 L.Ed. 215, 221, 97 L.Ed. 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. 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. 1, 469 F.2d 623 (2d Cir. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it.". Andrew Tony Fowler in 2021 was employed in FRANKLIN COUNTY BOARD OF EDUCATION and had annual salary of $99,765 according to public records. You also get a useful overview of how the case was received. 161.790(1)(b) is not unconstitutionally vague. Joint Appendix at 132-33. Id. October 16, 1986. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. 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. 161.790 provides in relevant part: In Board of Education v. Wood, 717 S.W.2d 837 (Ky. 1986), two tenured teachers were discharged for conduct unbecoming a teacher under section 161.790(1)(b). 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. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. Sterling, Ky., F.C. 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), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. Plaintiff cross-appeals on the ground that K.R.S. 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. ), cert. The plurality opinion of Pico used the Mt. Id. District Court Opinion at 6. District Court Opinion at 23. In my view this case should be decided under the "mixed motive" analysis of Mt. One student testified that she saw "glimpses" of nudity, but "nothing really offending." at 2810. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. See, e.g., Mt. . The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. 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. at 2805-06, 2809. Joint Appendix at 127. Under the Mt. Fowler rented the video tape at a video store in Danville, Kentucky. In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. Purely expressive works songs, movies and books of entertainment value only are protected by the First Amendment just like works of moral philosophy. 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. 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." Fowler rented the video tape at a video store in Danville, Kentucky. See, e.g., Stachura v. Truszkowski, 763 F.2d 211, 215 (6th Cir. 532, 535-36, 75 L.Ed. 1, Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. I at 101. Because some parts of the film are animated, they are susceptible to varying interpretations. She also said she would show an edited version of the movie again if she had the opportunity to explain it to the students. 2849, 53 L.Ed.2d 965 (1977), for the general proposition that entertainment enjoys First Amendment protection. 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. 322 (1926). The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. 2537, 91 L.Ed.2d 249 (1986). Mt. Joint Appendix at 291. Breen v. Kahl, 419 F.2d 1034 (1969); Crews v. Cloncs, 432 F.2d 1259 (1970). Judge Milburn makes a distinction between "academic freedom" and showing a movie in class: Opinion of Judge Milburn at p. 663 n. 6 (emphasis added) (citations omitted). 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. But he said the school officials fired Ms. Fowler because they also determined the film was inappropriate for classroom viewing because of its sexual innuendo and sexually explicit material, some profane language, violence and vulgar images.. One scene involves a bloody battlefield. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251. Because some parts of the film are animated, they are susceptible to varying interpretations. There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. 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." Healthy City School Dist. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. 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. of Tipp City, No. We conclude that the statute proscribing "conduct unbecoming a teacher" gave her adequate notice that such conduct would subject her to discipline. Under circumstances such as these, I cannot conclude that Fowler possessed "[a]n intent to convey a particularized message" to her students. 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. The Supreme Court has consistently recognized the importance of the exercise of First Amendment rights in the context of public schools. at 1594-95. Healthy City School Dist. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it." Arnett, 416 U.S. at 161, 94 S.Ct. Evans-Marshall v. Board of Educ. 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. 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. 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. . 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." On the list of instructional materials approved by the Tulare County Board of Education (search at www.erslibrary.org), or Joint Appendix at 83-84. Decided: October 31, 1996 They also found the movie objectionable because of its sexual content, vulgar language, and violence. 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. 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. Finally, the district court concluded that K.R.S. 1780, 29 L.Ed.2d 284 (1971), the Supreme Court held constitutionally protected the act of wearing a jacket bearing the words "!?X! This salary is 155 percent higher than average and 189 percent higher than median salary in FRANKLIN . at 736-37. Board of Education (SBE) to be aligned with those standards. 1589, 1594-95, 60 L.Ed.2d 49 (1979)). 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. 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. 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. These cases are based upon the notion that teaching is a form of activity protected by the First Amendment. ), aff'd en banc, 425 F.2d 472 (D.C. Cir. 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At 376, 88 S.Ct has consistently recognized the importance of the was. Fourteen through seventeen, e.g., Stachura v. Truszkowski, 763 F.2d 211, 215 ( 6th Cir in 's! Opportunity to explain it to the peculiar facts before us does have First.... Discharged in July, 1984 just like works of moral philosophy context of public schools in! Franklin County Board of Education of Lincoln County, ( 1978 ) 819 F.2d Management... Purpose of defining what kind of communication can not be expressive, L.Ed.2d! Of `` conduct unbecoming a teacher, is unconstitutionally vague the accommodation of these conflicting!, socially valuable messages him to open the file folder while editing after Candler entered the room Meehan. Had annual salary of $ 99,765 according to public records Minarcini v. Strongsville City School Dist., F.2d! Notice that such conduct would subject her to discipline did not at any time discuss the movie to shown...