at 1594-95. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S.Ct. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. 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". Therefore, I would affirm the judgment of the District Court. Justice Brennan restated the test to decide intent and asserted: Pico, 477 U.S. at 871, 102 S.Ct. 1969)). 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. 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. Subscribers can access the reported version of this case. Joint Appendix at 82-83. 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. Because some parts of the film are animated, they are susceptible to varying interpretations. 5//28he tdught high school % "dtin dnd ivics. Id., at 839-40. Opinion of Judge Peck at p. 668. See, e.g., Mt. 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. There is conflicting testimony as to whether, or how much, nudity was seen by the students. The court went on to view this conduct in light of the purpose for teacher tenure. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. Joint Appendix at 83-84. 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. Furthermore, Fowler never at any time made an attempt to explain any message that the students might derive from viewing the movie. denied, 430 U.S. 931, 97 S.Ct. Fowler testified that she left the classroom on several occasions while the movie was being shown. 1968), modified, 425 F.2d 469 (D.C. District Court Opinion at 23. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. 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). Plaintiff cross-appeals on the ground that K.R.S. 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. 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. Similarly, his finding that Fowler formed an opinion regarding the significance of the film during the morning showing is clearly erroneous. I at 108-09. View Andrew Tony Fowler Full Profile . She testified that she would show an edited version of the movie again if given the opportunity to explain it. (same); Fowler v. Board of Educ. 403 v. Fraser, ___ U.S. ___, 106 S.Ct. FRANKLIN COUNTY BOARD OF EDUCATION. When the students watched the film on May 31, 1984, Ms. Fowler directed a student who had seen the movie previously to cover the screen with a file folder during scenes involving nudity or sexually suggestive material. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. Healthy, 429 U.S. at 287, 97 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." 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. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. The charges were based on her decision to rent a videotape of the Pink Floyd movie from a store in Danville, Ky., and allow her students, ranging in age from 14 to 17, to see it on the last day of class in 1984 while she was completing their report cards. One student testified that she saw "glimpses" of nudity, but "nothing really offending. 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. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. 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. "Consciously or otherwise, teachers . denied, 411 U.S. 932, 93 S.Ct. Id., at 159, 94 S.Ct. 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. 736; James, 461 F.2d at 571. Joint Appendix at 113-14. . For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. 1985), rev'd in part on other grounds, ___ U.S. ___, 106 S.Ct. See, e.g., Stachura v. Truszkowski, 763 F.2d 211, 215 (6th Cir. 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.". 04-3524. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. United States Courts of Appeals. 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. Joint Appendix at 321. 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 . Consequently, the focus of our inquiry is whether Fowler's conduct was constitutionally protected. 1987 Edwards v. Aguillard. In the present case, it is undisputed that plaintiff's employment was terminated because she had the "R" rated movie shown to her students and because she said she would do it again. Joint Appendix at 83, 103, 307. The evidence in Wood established that the teachers had been smoking marijuana with two fifteen-year-old students in the teachers' apartment. 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. 352, 356 (M.D.Ala. There is conflicting testimony as to whether, or how much, nudity was seen by the students. The accommodation of these sometimes conflicting fundamental values has caused great tension, particularly when the conflict arises within the classroom. 1982) is misplaced. I at 101. 161.790(1)(b). 529, 34 L.Ed.2d 491 (1972). Another scene shows children being fed into a giant sausage machine. Plaintiff relies on Minarcini v. Strongsville City School District, 541 F.2d 577 (6th Cir. 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. Bryan, John C. Fogle, argued, Mt. 777, 780-81, 96 L.Ed. . 1855, 1858, 75 L.Ed.2d 903 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. Sec. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. 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. v. Doyle, 429 U.S. 274, 97 S.Ct. Joint Appendix at 132-33. 1117 (1931) (display of red flag is expressive conduct). 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. Breen v. Kahl, 419 F.2d 1034 (1969); Crews v. Cloncs, 432 F.2d 1259 (1970). United States District Court (Eastern District of Michigan). However, for the reasons stated below I would hold that the school board properly discharged Ms. Fowler. Boring v. Buncombe County Bd. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. 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. They also found the movie objectionable because of its sexual content, vulgar language, and violence. It is undisputed that the audio portion of the movie, which contained enough offensive language to mandate an automatic "R" rating under motion picture industry standards, was played through the entire movie. Another shows the protagonist cutting his chest with a razor. 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. 2849, 2859, 53 L.Ed.2d 965 (1977) ("no doubt that entertainment . 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." 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. of Educ. Evans-Marshall v. Board of Educ. District Court Opinion at 6. In my view, both of the cases cited by the dissent are inapposite. 2849, 53 L.Ed.2d 965 (1977), for the general proposition that entertainment enjoys First Amendment protection. re-employment even in the absence of the protected conduct." . Fisher v. Snyder, 476375 (8th Cir. 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. 1979). Id., at 1193. 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. See, e.g., Fowler v. Board of Education of Lincoln County, Kentucky, 819 F.2d 657 (6th Cir. 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. We find this argument to be without merit. The board then retired into executive session. Joint Appendix at 291. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. 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. In addition to the sexual aspects of the movie, there is a great deal of violence. One student testified that she saw "glimpses" of nudity, but "nothing really offending." 2537, 91 L.Ed.2d 249 (1986); Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1113 (5th Cir. Joint Appendix at 127. 39 Ed. at 1594-95, and Tinker, 393 U.S. at 508, 89 S.Ct. Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. Joint Appendix at 308-09. Spence, 418 U.S. at 410, 94 S.Ct. See 3 Summaries. 161.790(1)(b) is not unconstitutionally vague. But a panel of the 6th U.S. Because we conclude that plaintiff's discharge may be upheld under the charge of conduct unbecoming a teacher, we need not reach this issue. ", Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing. High School (D. . ), cert. . Sec. Fowler rented the video tape at a video store in Danville, Kentucky. The most conscientious of codes that define prohibited conduct of employees includes `catchall' clauses prohibiting employee `misconduct,' `immorality,' or `conduct unbecoming.'" Minarcini v. Strongsville City school District, 541 F.2d 577 ( 6th Cir Opinion regarding the significance the... Re-Employment even in the absence of the purpose for teacher tenure v. Cooper, 611 F.2d 1109, 1113 5th! To varying interpretations Minarcini v. Strongsville City school District v. Cooper, 611 F.2d,! 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