What one judge sees as "gross and bizarre," another may find, as did District Judge Scott Reed below, mild and not very "sexually suggestive.". . of Educ. Ms. Montoya is a member of the Maricopa County Planning and Zoning Commission and Marisol Federal Credit Union Board of Directors. DIST.. 721 S.W.2d 703 - BOARD OF EDUC. Thus, this case is distinguishable from those in which the Supreme Court has afforded First Amendment protection in cases involving expressive conduct. Moreover, the surrounding circumstances in the present case indicate that there was little likelihood "that the message would be understood by those who viewed it." Id. Trial Transcript Vol. In Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 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. at 307; Parducci v. Rutland, 316 F. Supp. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S. Ct. 777, 96 L. Ed. "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 v. Board of Education of Lincoln County, KY Teacher's showing of Pink Floyd: The Wall was not connected with the curriculum. 2d 471 (1977), as suggested by Judge Merritt's dissent, particularly when viewed in the context of the post-Mt. See Minarcini v. Strongsville City School Dist., 541 F.2d 577 (6th Cir. $('span#sw-emailmask-5382').replaceWith(''); 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.10. Cited 236 times, 101 S. Ct. 2176 (1981) | 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. NO. }); Email: 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. 2d 965 (1977), for the general proposition that entertainment enjoys First Amendment protection. Cir. Her having the movie shown under the circumstances involved demonstrates a blatant lack of judgment. See generally Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S. Ct. 675, 683-84, 17 L. Ed. BOARD EDUCATION CENTRAL DISTRICT NO. 2d 491 (1972). Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. Wieman v. Updegraff, 344 U.S. 183, 196, 73 S. Ct. 215, 221, 97 L. Ed. Cited 305 times. Click the citation to see the full text of the cited case. 106 S. Ct. at 3165. 397 (M.D. Trial Transcript Vol. v. ALTEMOSE CONSTRUCTION CO. 93 S. Ct. 1901 (1973) | the Draft" into a courthouse corridor. We find this argument to be without merit. 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 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. 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. Consciously or otherwise, teachers. On cross-examination, Charles Bailey testified that Mrs. Fowler told him to open the file folder while editing after Candler entered the room. 2d 549 (1986) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77, 60 L. Ed. Id., at 862, 869, 102 S. Ct. at 2805-06, 2809. The school teacher has traditionally been regarded as a moral example for the students. The court disagreed, concluding that "the regulations prescribing a teacher's speech and conduct are necessarily broad; they cannot possibly mention every type of misconduct." 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 the administrative hearing, several students testified that they saw no nudity. of Educ. 2d 842 (1974). Joint Appendix at 265-89. 1974), a teacher was discharged for public displays of deviate sexual behavior under a statute proscribing "conduct unbecoming a teacher." 2d 796 (1973)). " of Educ. Investigate the role of diplomacy in maintaining peace between nations. At the administrative hearing, several students testified that they saw no nudity. 2d at 737 James, 461 F.2d at 571. 2d 903 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 1985), rev'd in part on other grounds, --- U.S. ----, 106 S. Ct. 2537, 91 L. Ed. 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. at 410-11, 94 S. Ct. at 2730-31, the activity falls within the scope of the first and fourteenth amendments. NO. OF COLORA, Emergency Coalition to Defend Educational Travel v. United States Dep't of the Treasury, UNITED STATES v. AKZO COATINGS OF AMERICA, Professional Standards Commission v. Alberson. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. Fowler rented the video tape at a video store in Danville, Kentucky. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution. 333 U.S. 364 - UNITED STATES v. GYPSUM CO.. 343 U.S. 495 - JOSEPH BURSTYN, INC. v. WILSON. 26 v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. The board viewed the movie once in its entirety and once as it had been edited in the classroom. Stat. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 50 L. Ed. Wieman v. Updegraff, 344 U.S. 183, 196, 97 L. Ed. In order to defend itself against such a claim, the government must establish by a preponderance of the evidence that the decision to terminate would have been made in the absence of the exercise of the constitutionally protected right. 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." The single most important element of this inculcative process is the teacher. " Joint Appendix at 120-22. District Office Staff; Three Year Strategic Plan; Supergram; District Calendar; FUSD Annual Calendar; Student Achievement; Board of Trustees; Accessibility Information 717 S.W.2d 837 - BOARD OF EDUC. 1, ETC.. 469 F.2d 623 - RUSSO v. CENTRAL SCH. D.C. 41, 425 F.2d 472 (D.C. Cir. 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. See Jarman, 753 F.2d at 77.8. Therefore, I would affirm the judgment of the District Court. These cases are based upon the notion that teaching is a form of activity protected by the First Amendment. 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. 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. 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. 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. The Supreme Court has consistently recognized the importance of the exercise of First Amendment rights in the context of public schools. 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. Cited 15 times, Kannisto v. City and County of San Francisco, 541 F.2d 841 (1976) | Because some parts of the film are animated, they are susceptible to varying interpretations. See Schad v. Mt. 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. 4. Cited 210 times, Kingsville Independent School District v. Cooper, 611 F.2d 1109 (1980) | GIVHAN v. WESTERN LINE CONSOLIDATED SCHOOL DISTRICT ET AL. denied, 411 U.S. 932, 93 S. Ct. 1899, 36 L. Ed. The school board was also motivated by the poor judgment used by the teacher in not previewing an R-rated film and in the cavalier manner in which she allowed the film to be shown and "edited" by a student. Ms. Montoya's professional experience spans 25 plus years in non-profit management, government relations, and community and economic development. (Similar to, this one=the material was not appropriate for the student audience and the teacher did not, have a specific message to communicate to the students--since she did not prepare the material, The termination was upheld and with no back pay, damages or reinstatement based, First Amendment to the United States Constitution. In the present case, plaintiff Fowler had a fifteen-year-old student show a controversial, highly suggestive and somewhat sexually explicit movie to a group of high school students aged fourteen to seventeen. 2d 391 (1973); James v. Board of Education, 461 F.2d 566 (2d Cir. 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. Finally, we must determine whether plaintiff's conduct constituted "conduct unbecoming a teacher" within the meaning of Ky.Rev.Stat. I at 108-09. As the District Court correctly found, the school board in this case had to negate the testimony of its own members that the determinative causative factor in Mrs. Fowler's discharge was her decision to allow "antieducation, antifamily, antijudiciary, and antipolice" views to be expressed in her classroom. See, e.g., Martin v. Parrish, 805 F.2d 583 (5th Cir. Tex. 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." High School (D. . The message is that unloving, overly rigid and authoritarian parents, teachers, judges and officials create disturbed individuals and societies. -The district court ruled in favor of Fowler, concluding that her actions are indeed protected under the First Amendment. 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. This is the disclaimer text. 393 U.S. at 505-08, 89 S. Ct. at 736-37. 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. HEALTHY CITY BOARD OF ED. 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. See also James, 461 F.2d at 568-69. 8. Of Lincoln County TOPIC: Academic Freedom to show movies RULING: the Sixth Circuit ruled that school officials did not violate the First Amendment rights of a teacher when they fired her for showing the R-rated movie Pink Floyd -- The Wall in her classroom. 2. . 97 S. Ct. 1550 (1977) | Id. Plaintiff argues that Ky. Rev. 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." In my view, the facts of the present case do not fit any of the Supreme Court cases that have been decided to date. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. Furthermore, since this was a "free day" for the students, no departure from a board-mandated curriculum occurred. Monroe v. State Court of Fulton County, 739 F.2d 568, 571 (11th Cir. Id., at 1116. See also Board of Education v. McCollum, 721 S.W.2d 703 (Ky. 1986) (upholding discharge for conduct unbecoming a teacher when teacher filed false affidavit regarding sick leave and lied about time spent with student in course of special home instruction program). 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." Whether a certain activity is entitled to protection under the First Amendment is a question of law. A tenured teacher's employment was ended because she had an "R" rated movie, shown to her high school students on the last day of the school year. 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." In my view, the facts of the present case do not fit any of the Supreme Court cases that have been decided to date. 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." There are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. 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. The school board was also motivated by the poor judgment used by the teacher in not previewing an R-rated film and in the cavalier manner in which she allowed the film to be shown and "edited" by a student. 2d 731 (1969). Cited 164 times, 500 F.2d 1110 (1974) | Mrs. Peggy Eastburn 1972), cert. v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 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. Id. These cases do not lend themselves to the reverse purpose of defining what kind of communication can not be expressive. " Arnett, 416 U.S. at 161, 94 S. Ct. at 1648 (quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C. Cir. Joint Appendix at 242-46. 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." 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. Id. She stated that she did not at any time discuss the movie with her students because she did not have enough time. See Jarman, 753 F.2d at 77.8. In order to defend itself against such a claim, the government must establish by a preponderance of the evidence that the decision to terminate would have been made in the absence of the exercise of the constitutionally protected right. 2d 584 (1972). View Case Cited Cases Citing Case Cited Cases Listed below are the cases that are cited in this Featured Case. See, e.g., Stachura v. Truszkowski, 763 F.2d 211, 215 (6th Cir. accident), Expand root word by any number of ), cert. Joint Appendix at 83-84. District Court Opinion at 23. Consequently, the focus of our inquiry is whether Fowler's conduct was constitutionally protected. . 433 U.S. 562 - ZACCHINI v. SCRIPPS-HOWARD BROADCASTING CO.. 439 U.S. 410 - GIVHAN v. WESTERN LINE CONSOL. 403 U.S. at 25. Accordingly, we conclude that the statute is not unconstitutionally vague as applied to Fowler's conduct. Therefore, I disagree with the distinction between instruction and entertainment drawn by Judge Milburn and the conflation of vulgarity and anti-establishment ideas set forth by Judge Peck. Healthy City School Dist. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. Erika Capogna Fowler vs BOE Background Information - Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky school system - Group of students requested that the movie, "Pink Floyd- The Wall" was shown - Fowler was prompted by Charles Bailey, age 15, who at 411, because Fowler did not explain the messages contained in the film to the students. 1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir. 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. See Tinker, 393 U.S. at 506, 89 S. Ct. at 736, 21 L. Ed. Id., at 1193. 1986). Cited 1917 times, 631 F.2d 1300 (1980) | 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. The only official posting location is the notice board at the northwest corner of the district office at 1617 South 67th Avenue. There is conflicting testimony as to whether, or how much, nudity was seen by the students. Davis stated that the school's indifference and lack of preventative action of sexual harassment towards her daughter by another student hindered her daughter's educational rights as guaranteed by Title IX of the Education Amendments . 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). 461 F.2d 566 - JAMES v. BOARD OF EDUCATION OF CENTRAL DIST. 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. In my view, both of the cases cited by the dissent are inapposite. The Mt. Healthy City School Dist. Sterling, Ky., for defendants-appellants, cross-appellees. Joint Appendix at 265-89. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. 2d 518, 105 S. Ct. 1504 (1985). Furthermore, Fowler never at any time made an attempt to explain any message that the students might derive from viewing the movie. She introduced a controversial and sexually explicit movie into a classroom of adolescents without preview, preparation or discussion. 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. HEALTHY CITY SCHOOL DISTRICT BOARD EDUCATION v. DOYLE, 97 S. Ct. 568 (1977) | Spence, 418 U.S. at 411, 94 S. Ct. at 2730. Joint Appendix at 113-14. 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. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. Spence, 418 U.S. at 410. denied, 464 U.S. 993, 104 S. Ct. 487, 78 L. Ed. The purpose of teacher tenure laws is to promote good order in the school system by preventing the arbitrary removal of capable and experienced teachers by political or personal whim . 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. Arrow down to read the additional content. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. . . 1976) (insubordinate acts were clearly within scope of regulation governing "unofficerlike conduct"; regulation not vague as applied), cert. Cited 833 times, 72 S. Ct. 777 (1952) | of Educ., 429 U.S. 274, 50 L. Ed. Healthy set the standard that once the plaintiff had shown that his conduct was constitutionally protected and that his conduct was a substantial or motivating factor in the Board's decision to discharge or not to rehire, the school board then must show that it would have reached the same decision even in the absence of the protected conduct. Cf. 403 v. FRASER. Judge Milburn makes a distinction between "academic freedom" and showing a movie in class: We do not intimate that a teacher is entitled to the protection of the First Amendment only when teaching. See, e.g., Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. Healthy standard, a public employee establishes a prima facie case of a constitutional violation if she shows that she was engaged in protected activity, and that such activity was a substantial or motivating factor in the decision to terminate her employment. 413 U.S. 548 - USCSC v. NATIONAL ASSOCIATION OF LETTER CARRIERS. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S. Ct. 777, 780-81, 96 L. Ed. 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. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. right or left of "armed robbery. at 410-11, 94 S. Ct. at 2730-31, the activity falls within the scope of the first and fourteenth amendments. 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". Any limitation on the exercise of constitutional rights can be justified only by a conclusion, based upon reasonable inferences flowing from concrete facts and not abstractions, that the interests of discipline or sound education are materially and substantially justified . Cited 35 times. 470 U.S. 564 - ANDERSON v. BESSEMER CITY. v. INDUSTRIAL FOUNDATION SOUTH. 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. It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. 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. Purely expressive works -- songs, movies and books of entertainment value only -- are protected by the First Amendment just like works of moral philosophy. Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge. Id. Similarly, in Wishart v. McDonald, 500 F.2d 1110 (1st Cir. In the final analysis, the ultimate goal of school officials is to insure that the discipline necessary to the proper functioning of the school is maintained among both teachers and students. The file folder while editing after Candler entered the room, 478 U.S.,. Board-Mandated curriculum occurred 5th Cir, 763 F.2d 211, 215 ( 6th Cir v.,... Displays of deviate sexual behavior under a statute proscribing `` conduct unbecoming a teacher. 93 S. at., Charles Bailey testified that they saw no nudity what kind of communication can not be expressive. grades nine eleven... Students might derive from viewing the movie once in its entirety and once as it had edited... 2805-06, 2809 at 862, 869, 102 S. Ct. 1550 ( 1977 |! ; James v. Board of EDUC behavior under a statute proscribing `` conduct a. 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