at 3165 (quoting Ambach, 441 U.S. at 76-77, 99 S.Ct. 2799, 73 L.Ed.2d 435 (1982), and Bethel School Dist. Sterling, Ky., F.C. Decided: October 31, 1996 Fraser, 106 S.Ct. At the administrative hearing, several students testified that they saw no nudity. It is undisputed that Fowler was discharged for the showing of the movie, Pink Floyd The Wall. ", Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing. 1504, 1512-13, 84 L.Ed.2d 518 (1985). Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it." Joint Appendix at 291. 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. at 1788. 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. Andrew Tony Fowler Overview. 352, 356 (M.D.Ala. 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. 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. 12 (Board) to dismiss her from her teaching position on the grounds of immorality. Another shows the protagonist cutting his chest with a razor. 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. United States Court of Appeals (6th Circuit), Before MERRITT and MILBURN, Circuit Judges, and PECK; MILBURN; JOHN W. PECK; MERRITT. 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. 1968), modified, 425 F.2d 469 (D.C. 1899, 36 L.Ed.2d 391 (1973); James v. Board of Education, 461 F.2d 566 (2d Cir. enjoys First Amendment protection"). It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. 85-5815, 85-5835. Joint Appendix at 137. Plaintiff cross-appeals from the holding that K.R.S. 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." 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.. 1117 (1931) (display of red flag is expressive conduct). 1969)). She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. 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. Subscribers are able to see a visualisation of a case and its relationships to other cases. Ephraim, 452 U.S. 61, 101 S.Ct. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. denied, 409 U.S. 1042, 93 S.Ct. Moreover, in Spence. 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. Id. Relying on Fowler v. Board of Education. at 736 (wearing black armband was conduct akin to pure speech); Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. I at 101. We conclude that the statute proscribing "conduct unbecoming a teacher" gave her adequate notice that such conduct would subject her to discipline. 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. (dicta indicating that standard of "conduct prejudicial to the effective and expeditious administration of the business of the courts" was sufficiently clear to put judge on notice that criminal, potentially impeachable offenses would trigger investigation), cert. Id. Rehearing and Rehearing En Banc Denied July 21, 1987. The film describes the life of a rock star, including his childhood, failed marriage, drug abuse and ruined career. School officials testified that they objected to the movie because it promoted values which were described as immoral, antieducation, antifamily, antijudiciary, and antipolice. denied, ___ U.S. ___, 106 S.Ct. One scene involves a bloody battlefield. Because some parts of the film are animated, they are susceptible to varying interpretations. 1178, 87 L.Ed. Joint Appendix at 291. 1985) (nonexpressive dancing constitutes conduct not entitled to protection of the First Amendment). WASHINGTON (AP) _ The Supreme Court today rejected an appeal by a Kentucky public high school teacher fired for showing her class Pink Floyd - The Wall, an R-rated movie about a troubled rock star. Joint Appendix at 265-89. One student testified that she saw "glimpses" of nudity, but "nothing really offending. ." Boring v. Buncombe County Bd. 3273, 91 L.Ed.2d 563 (1986); Smith v. Price, 616 F.2d 1371, 1379 n. 10 (5th Cir. at 576. 161.790(1)(b) is not unconstitutionally vague. 1979). Plaintiff cross-appeals on the ground that K.R.S. In the final analysis. 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. 397 (M.D.Ala. She did not preview the movie, despite the fact that she had been warned that portions were unsuitable for viewing in this context. In the present case, we conclude that plaintiff's conduct, although not illegal, constituted serious misconduct. 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. Healthy, 429 U.S. at 287, 97 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. Plaintiff relies on Minarcini v. Strongsville City School District, 541 F.2d 577 (6th Cir. v. Doyle, 429 U.S. 274, 97 S.Ct. 5//28he wds employed by the % "incoln ounty 5//28chool istrict in $ !entucky. Peck noted that the board was displeased with the anti-establishment focus of the film and that alone would not be legitimate grounds for discharging the teacher. lintiff 7114:he pldintiff in this cdse is tenured school tedcher, # dcqueline owler. James W. Williams, III, Rankin, Baker and Williams, Stanford, Ky., Robert L. Chenoweth, Bryan, Fogle and Chenoweth, Mt. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. 733, 736, 21 L.Ed.2d 731 (1969). 1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir. 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. She has lived in the Fowler Elementary School District for the past 22 years. The court noted that "[t]he evidence indicates that there was serious misconduct of an immoral and criminal nature and a direct connection between the misconduct and the teachers' work." Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. Moreover, even these three justices explicitly noted that the decision regarding this right did not extend to the classroom. A number of courts have rejected vagueness challenges when an employee's conduct clearly falls within a statutory or regulatory prohibition. Bryan, John C. Fogle, argued, Mt. of Educ., 431 U.S. 209, 231, 97 S.Ct. . Joint Appendix at 137. Under the Mt. High School (D. . 1633, 40 L.Ed.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. 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. 1, Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. See 3 Summaries. One student testified that she saw "glimpses" of nudity, but "nothing really offending." Similarly, in Wishart v. McDonald, 500 F.2d 1110 (1st Cir. 322 (1926). 733, 736, 21 L.Ed.2d 731 (1969), has acknowledged that students and teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Joint Appendix at 83, 103, 307. Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found. 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. Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more. Circuit Court of Appeals voted 2-1 last June to overturn the trial judge and uphold the firing. Healthy standard to decide whether Ms. Fowler's discharge violated the First Amendment, but erred in its finding that, but for Ms. Fowler's constitutionally protected activity of communicating various ideas and political thoughts to her students, she would not have been fired. As herein above indicated, I concur in the result reached in Judge Milburn's opinion. Plaintiff cross-appeals on the ground that K.R.S. 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. Ky.Rev.Stat. For similar reasons, plaintiff's reliance on Pratt v. Independent School District No. Joint Appendix at 82-83. The dissent relies upon Schad v. Mt. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. However, she stated that she believed Charles Bailey when he told her that he continued to edit while she was gone. Andrew Tony Fowler in 2021 was employed in FRANKLIN COUNTY BOARD OF EDUCATION and had annual salary of $99,765 according to public records. At the bench trial in the district court, Fowler repeated her contention that she believed the movie contained important, socially valuable messages. 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 . 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). at 1647 (quoting Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 1987 Edwards v. Aguillard. 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. Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge. 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. Plaintiff argues that Ky.Rev.Stat. . School board must not censor books. Healthy cases of Board of Educ. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. He finds that Ms. Fowler did not possess "[a]n intent to convey a particularized message" to her students because she was not familiar with the content of the film before she showed it, citing Spence v. Washington, 418 U.S. 405, 410, 94 S.Ct. at 2730. The board viewed the movie once in its entirety and once as it had been edited in the classroom. There is conflicting testimony as to whether, or how much, nudity was seen by the students. The board then retired into executive session. She testified that, despite the fact that she had never seen the movie before having it shown to her students, and despite the fact that she was posting grades on report cards and left the room several times while the movie was being shown, she believed it had significant value. Trial Transcript Vol. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. Joint Appendix at 120-22. Joint Appendix at 83-84. 04-3524. 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. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. 106 S.Ct. applying Arnett and Wishart in upholding dismissal standard of "conduct unbecoming a teacher", Fowler v. Board of Education of Lincoln County. 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