In the present case, we conclude that plaintiff's conduct, although not illegal, constituted serious misconduct. Joint Appendix at 265-89. 693, 58 L.Ed.2d 619 (1979); Mt. In its opinion, the district court relied upon the analytical framework provided by the, Request a trial to view additional results. One student testified that she saw "glimpses" of nudity, but "nothing really offending." Another shows the protagonist cutting his chest with a razor. Rehearing and Rehearing En Banc Denied July 21, 1987. Id. Plaintiff's reliance upon cases grounded in the concept of "academic freedom," e.g., Cooper, 611 F.2d at 1113; Dean, 486 F. Supp. ", Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing. 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. 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. 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." The board then retired into executive session. at 736 (wearing black armband was conduct akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. Healthy. San Francisco Unified School District and County Office of Education Board Policy 6161.11 Supplementary Instructional Materials . See, e.g., Fowler v. Board of Education of Lincoln County, Kentucky, 819 F.2d 657 (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." The board viewed the movie once in its entirety and once as it had been edited in the classroom. Healthy, 429 U.S. at 287, 97 S.Ct. Dist. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. Joint Appendix at 137. . of Educ. denied, 409 U.S. 1042, 93 S.Ct. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251. 1986). 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. At the administrative hearing, several students testified that they saw no nudity. 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. of Educ. at 737). One student testified that she saw "glimpses" of nudity, but "nothing really offending." At the bench trial in the district court, Fowler repeated her contention that she believed the movie contained important, socially valuable messages. Because some parts of the film are animated, they are susceptible to varying interpretations. 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. 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. Plaintiff cross-appeals on the ground that K.R.S. Fowler v. Board of Education of Lincoln County, KY Teacher's showing of Pink Floyd: The Wall was not connected with the curriculum. The lm includes violent Joint Appendix at 242-46. 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. This segment of the film was shown in the morning session. The single most important element of this inculcative process is the teacher. 2849, 53 L.Ed.2d 965 (1977), for the general proposition that entertainment enjoys First Amendment protection. denied, 430 U.S. 931, 97 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. 1987). The Court in Mt. The most conscientious of codes that define prohibited conduct of employees includes `catchall' clauses prohibiting employee `misconduct,' `immorality,' or `conduct unbecoming.'" There is conflicting testimony as to whether, or how much, nudity was seen by the students. Id., at 410, 94 S.Ct. Circuit Court of Appeals voted 2-1 last June to overturn the trial judge and uphold the firing. 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. 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. 1980); Russo v. Central School District No. 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. 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. See, e.g., Stern v. Shouldice, 706 F.2d 742 (6th Cir. Sch. the Draft" into a courthouse corridor. Likewise, a motion picture is a form of expression which may be entitled to the protection of the First Amendment. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. 95-2593. (same); id. at 2730. Fowler rented the video tape at a video store in Danville, Kentucky. Decided June 1, 1987. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. Spence, 418 U.S. at 411, 94 S.Ct. This lack of love is the figurative "wall" shown in the movie. Whether a certain activity is entitled to protection under the First Amendment is a question of law. 2799, 73 L.Ed.2d 435 (1982). at 573-74. Id., at 159, 94 S.Ct. 302, 307 (E.D.Tex. 393 U.S. at 505-08, 89 S.Ct. This court need not go as far as the Court did in Pico and Bethel because those cases respectively involved school library 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. Bryan, John C. Fogle, argued, Mt. Therefore, he said, her decision to permit the students to see the film is not a form of expression entitled to protection under the First Amendment., Judge John W. Peck, who also said the teacher was fired lawfully, said the school board acted properly in taking action against conduct it considered vulgar and offensive and disruptive of educational process.. In my view, the facts of the present case do not fit any of the Supreme Court cases that have been decided to date. Ms. Francisca Montoya is a lifelong resident of Maricopa County and advocate of public education. 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. 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." I believe a teacher should be similarly protected by the First Amendment whether she is participating in an instructional or non-instructional day. Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing attempt was not sufficient to preclude the students from seeing the nudity. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. Healthy City School Dist. Healthy cases of Board of Educ. of Educ., 431 U.S. 209, 231, 97 S.Ct. 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 113-14. 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. (Education Code 60605.86- . 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. Mt. 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. applying Arnett and Wishart in upholding dismissal standard of "conduct unbecoming a teacher", Fowler v. Board of Education of Lincoln County. United States Court of Appeals, Sixth Circuit. re-employment even in the absence of the protected conduct." High School (D. . . She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. Joint Appendix at 82-83. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. ." 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. 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. . 1633 (opinion of White, J.) -The district court ruled in favor of Fowler, concluding that her actions are indeed protected under the First Amendment. 85-5815, 85-5835. She testified that she would show an edited. In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. 1098 (1952). Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the worlds leading publishers. Subscribers are able to see a list of all the documents that have cited the case. at 576. 568, 50 L.Ed.2d 471 (1977). We do not intimate that a teacher is entitled to the protection of the First Amendment only when teaching. Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. Movie during part of the ages fourteen through seventeen Amendment only when.... Supplementary Instructional Materials Assistant Principal Michael Candler, who observed the movie contained important, socially valuable.! 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