CASE TITLE:Fowler v. Board of Education of Lincoln County Kentucky CITATION: Fowler v. Board of Education of Lincoln County, 819 F.2d 657 (Sixth Circuit, 1987) FACTSA tenured teacher's employment was ended because she had an "R" rated movie, Pink Floyd--The Wall,shown to her high school students on the last day of the school year. 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. Even when the actor does intend to communicate a message by his conduct, a governmental interest in regulating the nonspeech aspect of such conduct may justify incidental restrictions on the speech aspect as well. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT ET AL. I agree with Judge Milburn's decision that the school board's termination of Ms. Fowler's teaching contract did not violate her First Amendment right of free expression but write separately because I reach this result by a different route. This segment of the film was shown in the morning session. For example, in Frison v. Franklin County Board of Education, 596 F.2d 1192 (4th Cir. See, e.g., Stern v. Shouldice, 706 F.2d 742 (6th Cir. The district court concluded that Fowler's conduct was protected by the First Amendment, and that she was discharged for exercising her constitutionally protected rights. 418 U.S. at 409, 94 S. Ct. at 2730. Ms. Lisa M. Perez Cited 24 times. 1986). Under circumstances such as these, I cannot conclude that Fowler possessed "an intent to convey a particularized message" to her students. I would also question the notion that an explanation from the teacher was necessary before the class was likely to understand the themes and viewpoints contained in this film. 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. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S. Ct. 2727, 41 L. Ed. To determine whether [plaintiff's] conduct is entitled to first amendment protection, "the nature of [plaintiff's] activity, combined with the factual context and environment in which it was undertaken" must be considered. 2d 637 (1966) (sit-in by black students in "whites only" library was symbolic speech); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633-34, 63 S. Ct. 1178, 1183, 87 L. Ed. We have viewed the film in conjunction with Fowler's testimony concerning the portions of the film which were edited during the two showings, and we conclude that the district court's findings in this regard are clearly erroneous. Joint Appendix at 265-89. 2d 435 (1982) used the Mt. of Educ. See also Ambach, 441 U.S. at 76-77, 99 S. Ct. at 1594-95. The Supreme Court has consistently recognized the importance of the exercise of First Amendment rights in the context of public schools. Consequently, the focus of our inquiry is whether Fowler's conduct was constitutionally protected. We find this argument to be without merit. Cited 711 times, 94 S. Ct. 1633 (1974) | She testified that she would show an edited version of the movie again if given the opportunity to explain it. 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. 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. Fowler rented the video tape at a video store in Danville, Kentucky. In Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 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. v. FRASER, 106 S. Ct. 3159 (1986) | DIST.. 721 S.W.2d 703 - BOARD OF EDUC. Stat. 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. 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. She has a long history of volunteering her services in our classrooms and is a very active citizen with regard to City of Phoenix initiatives. 393 U.S. 503 - TINKER v. DES MOINES SCHOOL DIST.. 408 U.S. 104 - GRAYNED v. CITY OF ROCKFORD. See, e.g., Stachura v. Truszkowski, 763 F.2d 211, 215 (6th Cir. I at 101.1, Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. TINKER ET AL. DIST. 1976) (insubordinate acts were clearly within scope of regulation governing "unofficerlike conduct"; regulation not vague as applied), cert. 2d 549 (1986). 302 - DEAN v. TIMPSON INDEPENDENT SCH. Sec. 1969)). For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. 433 U.S. 562 - ZACCHINI v. SCRIPPS-HOWARD BROADCASTING CO.. 439 U.S. 410 - GIVHAN v. WESTERN LINE CONSOL. Healthy burden. DIST. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Ala. 1970), is misplaced. In Minarcini, this court held that this "right to know" was violated by the removal of library books solely on the basis of the social and political tastes of the school board. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. $(document).ready(function () { We emphasize that our decision in this case is limited to the peculiar facts before us. 97 S. Ct. 1550 (1977) | 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. The Supreme Court in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 1, 469 F.2d 623 (2d Cir. 2d 471 (1977), as suggested by Judge Merritt's dissent, particularly when viewed in the context of the post-Mt. One scene involves a bloodly battlefield. The dissent relies upon Schad v. Mt. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. 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. Id. Cited 15 times, Kannisto v. City and County of San Francisco, 541 F.2d 841 (1976) | Healthy cases of Board of Educ. 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. v. DETROIT BOARD EDUCATION ET AL. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 50 L. Ed. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. 322 (1926). 2d 619 (1979) (holding that a conversation by a teacher and principal in the principal's office, a private expression by a public employee, was protected speech). Healthy, 429 U.S. at 287. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. The evidence in Wood established that the teachers had been smoking marijuana with two fifteen-year-old students in the teachers' apartment. 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. 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. Id., at 839-40. See also James, 461 F.2d at 568-69. Cited 357 times, PICKERING v. BOARD EDUCATION TOWNSHIP HIGH SCHOOL DISTRICT 205, 88 S. Ct. 1731 (1968) | 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. We do not intimate that a teacher is entitled to the protection of the First Amendment only when teaching. This has been the unmistakable holding of this Court for almost 50 years. v. BARNETTE ET AL. Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge. Mt. In Spence, the undisputed facts established that the appellant hung a United States flag with a peace symbol affixed to it because he "wanted people to know that [he] thought America stood for peace." Investigate the role of diplomacy in maintaining peace between nations. Cited 305 times. Pico, 477 U.S. at 871, 102 S. Ct. at 2810. 2d 619, 99 S. Ct. 693 (1979) (holding that a conversation by a teacher and principal in the principal's office, a private expression by a public employee, was protected speech). 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. Furthermore, Fowler never at any time made an attempt to explain any message that the students might derive from viewing the movie. 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. Cited 405 times, 46 S. Ct. 126 (1926) | $('span#sw-emailmask-5382').replaceWith(''); Cited 164 times, 500 F.2d 1110 (1974) | Joint Appendix at 82-83. Id. v. ALTEMOSE CONSTRUCTION CO. 93 S. Ct. 1901 (1973) | Id., at 1193. Spence, 418 U.S. at 410. She is the proud mother of two sons and three granddaughters. Cited 61 times. " Arnett, 416 U.S. at 161, 94 S. Ct. at 1648 (quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C. Cir. Cited 63 times, 51 S. Ct. 532 (1931) | Id. However, for the reasons stated below I would hold that the school board properly discharged Ms. Fowler. Id. Joint Appendix at 129-30. I would hold, rather, that the district court properly used the Mt. In Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. ), cert. 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. View Profile. In the final analysis, [t]he 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. 1974), a teacher was discharged for public displays of deviate sexual behavior under a statute proscribing "conduct unbecoming a teacher." As herein above indicated, I concur in the result reached in Judge Milburn's opinion. at 287, 97 S. Ct. at 576. 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. First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. 1968), modified, 425 F.2d 469 (D.C. 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. v. BOARD REGENTS UNIVERSITY STATE NEW YORK ET AL. She has lived in the Fowler Elementary School District for the past 22 years. She has lived in the Fowler Elementary School District for the past 22 years. denied, 464 U.S. 993, 104 S. Ct. 487, 78 L. Ed. What one judge sees as "gross and bizarre," another may find, as did District Judge Scott Reed below, mild and not very "sexually suggestive.". Whether a certain activity is entitled to protection under the First Amendment is a question of law. 2d 471, 97 S. Ct. 568 (1977) (finding a teacher's communication with a radio station regarding school board policies was constitutionally protected activity); Givhan v. Western Line Consol. 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." To determine whether [plaintiff's] conduct is entitled to first amendment protection, "the nature of [plaintiff's] activity, combined with the factual context and environment in which it was undertaken" must be considered. Under the circumstances of that case, the court concluded that plaintiff's discharge was not constitutionally offensive. The message is that unloving, overly rigid and authoritarian parents, teachers, judges and officials create disturbed individuals and societies. Id., at 840. of Educ., 431 U.S. 209, 231, 97 S. Ct. 1782, 1797, 52 L. Ed. Cited 25 times, 104 S. Ct. 485 (1983) | Sec. 2d 965 (1977), for the general proposition that entertainment enjoys First Amendment protection. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. $('span#sw-emailmask-5385').replaceWith(''); In my view, both of the cases cited by the dissent are inapposite. The single most important element of this inculcative process is the teacher. 2d 671 (1981) (entertainment protected same as political or ideological speech); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578, 97 S. Ct. 2849, 53 L. Ed. var encodedEmail = swrot13('qnavryyrybcrm@sbjyrehfq.bet'); This lack of love is the figurative "wall" shown in the movie. 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. District Court Opinion at 6. U.S. 104 - GRAYNED v. 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