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. UNITED STATES v. UNITED STATES GYPSUM CO. 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. 2d 563 (1986); Smith v. Price, 616 F.2d 1371, 1379 n.10 (5th Cir. She introduced a controversial and sexually explicit movie into a classroom of adolescents without preview, preparation or discussion. Shown on a non-instructional day that was used for teachers to complete grade cards, A group of students requested the movie, Fowler was not familiar with the movie, Fowler asked students if it was appropriate for school, Charles Bailey (age 15), said it, Fowler instructed Charles Bailey the 15 year old student to edit out parts that were. See, e.g., Mt. Mrs. Eastburn has resided in the Fowler community for nearly 30 years, and all of her children attended Fowler schools. Click the citation to see the full text of the cited case. She is the proud mother of two sons and three granddaughters. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it." 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. This court need not go as far as the Court did in Pico and Bethel because those cases respectively involved school libraries and a school assembly and did not have the captive audience factor with the teacher acting in loco parentis that is present in this case. At the bench trial in the district court, Fowler repeated her contention that she believed the movie contained important, socially valuable messages. v. BOARD REGENTS UNIVERSITY STATE NEW YORK ET AL. 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." 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). It is also undisputed that she left the room on several occasions while the film was being shown. Therefore, I would affirm the judgment of the District Court. }); Email: Monroe v. State Court of Fulton County, 739 F.2d 568, 571 (11th Cir. denied, 464 U.S. 993, 104 S. Ct. 487, 78 L. Ed. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. 1976) (insubordinate acts were clearly within scope of regulation governing "unofficerlike conduct"; regulation not vague as applied), cert. The school board stated insubordination as an alternate ground for plaintiff's dismissal. Opinion of Judge Milburn at p. 663 n. 6 (emphasis added) (citations omitted). Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. See also James, 461 F.2d at 568-69. Bd. 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. of Educ. Cited 889 times, Pratt v. Independent School District No. 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.6 Fowler agreed to allow the movie to be shown, at the students' request, because May 31 was "their treat type of day." We conclude that the statute proscribing "conduct unbecoming a teacher" gave her adequate notice that such conduct would subject her to discipline. 7. Cited 533 times, 418 F.2d 359 (1969) | Indeed, the "fundamental values necessary to the maintenance of a democratic political system" disfavor the use of terms of debate highly offensive or highly threatening to others. Id. The District Court held that the school board failed to carry this Mt. Ms. Montoya's professional experience spans 25 plus years in non-profit management, government relations, and community and economic development. denied, 464 U.S. 993, 104 S. Ct. 487, 78 L. Ed. 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. 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. v. STACHURA, 106 S. Ct. 2537 (1986) | Purely expressive works--songs, movies and books of entertainment value only--are protected by the First Amendment just like works of moral philosophy. Cited 210 times, Kingsville Independent School District v. Cooper, 611 F.2d 1109 (1980) | ), aff'd en banc, 425 F.2d 472 (D.C. Cir. v. ALTEMOSE CONSTRUCTION CO. 93 S. Ct. 1901 (1973) | 2d 261 (1977) ("But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters--to take a nonexhaustive list of labels--is not entitled to full First Amendment protection."). 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. 1979); Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir. Another scene shows children being fed into a giant sausage machine. Id. 2d 549 (1986) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77, 99 S. Ct. 1589, 1594-95, 60 L. Ed. In my view, the facts of the present case do not fit any of the Supreme Court cases that have been decided to date. Wieman v. Updegraff, 344 U.S. 183, 196, 73 S. Ct. 215, 221, 97 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. See Jarman, 753 F.2d at 77.8. denied, 430 U.S. 931, 51 L. Ed. 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. A teacher is held to a standard of personal conduct which does not permit the commission of immoral or criminal acts because of the harmful impression made on the students. The evidence in Wood established that the teachers had been smoking marijuana with two fifteen-year-old students in the teachers' apartment. School officials testified that they objected to the movie because it promoted values which were described as immoral, antieducation, antifamily, antijudiciary, and antipolice. 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. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. at 307; Parducci v. Rutland, 316 F. Supp. JOHN W. PECK, Senior Circuit Judge, concurring. Joint Appendix at 82-83. Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. OF LAUREL COUNTY v. McCOLLUM. NO. 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. Because we conclude that plaintiff's discharge may be upheld under the charge of conduct unbecoming a teacher, we need not reach this issue. Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 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. 8. 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. Id., at 862, 869, 102 S. Ct. at 2805-06, 2809. The cases just discussed demonstrate that conduct is protected by the First Amendment only when it is expressive or communicative in nature.7 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. Writing for the Court, Justice Harlan stated that "while the particular four-letter word being litigated her is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Consequently, the focus of our inquiry is whether Fowler's conduct was constitutionally protected. 1979); Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir. 2d 619 (1979); Mt. Cited 3902 times. The school board stated insubordination as an alternate ground for plaintiff's dismissal. 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. at 736 (wearing black armband was conduct akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S. Ct. 719, 724, 15 L. Ed. The Mt. The District Court held that the school board failed to carry this Mt. 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. We do not intimate that a teacher is entitled to the protection of the First Amendment only when teaching. search results: Unidirectional search, left to right: in It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing . mistake[s] ha[ve] been committed." 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. 1982) is misplaced. This segment of the film was shown in the morning session. 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. of Educ. Id. 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 Supreme Court has recognized that not every form of "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Cited 1917 times, 631 F.2d 1300 (1980) | Cited 6 times, Frison v. Franklin County Board of Education, 596 F.2d 1192 (1979) | 431 U.S. 209 - ABOOD v. DETROIT BOARD OF EDUCATION. 403 v. FRASER. I agree with both of these findings. 746, 68 S. Ct. 525 (1948), and Anderson v. Bessemer City, 470 U.S. 564, 575, 84 L. Ed. 2d 284 (1971), the Supreme Court held constitutionally protected the act of wearing a jacket bearing the words "!?X! . 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. On July 10, 1984, plaintiff Fowler appeared with counsel at the administrative hearing. 2d 549 (1986) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77, 60 L. Ed. Id., at 839. Joint Appendix at 265-89. Sec. 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. 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.6 Fowler agreed to allow the movie to be shown, at the students' request, because May 31 was "their treat type of day." GIVHAN v. WESTERN LINE CONSOLIDATED SCHOOL DISTRICT ET AL. at 287, 97 S. Ct. at 576. 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. v. Doyle, 429 U.S. 274, 285-87, 97 S. Ct. 568, 50 L. Ed. 1974), a teacher was discharged for public displays of deviate sexual behavior under a statute proscribing "conduct unbecoming a teacher." 598 F.2d 535 - CARY v. BD. 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. The root of the vagueness doctrine is a rough idea of fairness. And in Barnette, the court recognized that a flag salute is a form of communicative conduct which implicates the First Amendment. 1. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. $(document).ready(function () { There is conflicting testimony as to whether, or how much, nudity was seen by the students. 403 ET AL. 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. . Only three justices agreed that students possess a constitutionally protected entitlement to access to particular books in the school's library. $(document).ready(function () { 68 S. Ct. 525 (1948) | Under the Mt. 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. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. See generally Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S. Ct. 675, 683-84, 17 L. Ed. v. DOYLE. Joint Appendix at 83, 103, 307. DIST. These cases are based upon the notion that teaching is a form of activity protected by the First Amendment. 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