Healthy City School Dist. 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. Cited 1917 times, 631 F.2d 1300 (1980) | Cited 17 times, 541 F.2d 949 (1976) | 2d 671 (1981), and Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S. Ct. 2849, 53 L. Ed. After selecting the link, additional content will expand. Plaintiff argues that Ky. Rev. 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." 161.790(1)(b).9 Our analysis is guided by two recent decisions by the Kentucky Supreme Court. Another shows police brutality. Cited 630 times, 94 S. Ct. 2727 (1974) | See, e.g., Mt. Counts v. Cedarville School District Books put on reserve in the library must be so because of clear violation of obscenity rules. Cited 24 times. 93 S. Ct. 529 (1972) | 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. NO. 1098 (1952). 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. Similarly, his finding that Fowler formed an opinion regarding the significance of the film during the morning showing is clearly erroneous. While this is a general principle of law espoused by the Supreme Court on several occasions, the Court has also indicated that in determining whether a given type of entertainment is protected by the First Amendment, it will look to the kind of entertainment involved and the appropriateness of the entertainment under the circumstances such as the time and place where offered. Healthy City School Dist. We conclude that the statute proscribing "conduct unbecoming a teacher" gave her adequate notice that such conduct would subject her to discipline. James W. Williams, III, Rankin, Baker and Williams, Stanford, Ky., Robert L. Chenoweth, Bryan, Fogle and Chenoweth, Mt. Fowler rented the video tape at a video store in Danville, Kentucky. of Educ. 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 . 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. 717 S.W.2d 837 - BOARD OF EDUC. View Profile. Plaintiff's reliance upon cases grounded in the concept of "academic freedom," e.g., Cooper, 611 F.2d at 1113; Dean, 486 F. Supp. 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 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. Joint Appendix at 265-89. Opinion of Judge Milburn at p. 663 n. 6 (emphasis added) (citations omitted). Cited 6992 times, 91 S. Ct. 1780 (1971) | 1979), a teacher was demoted after an incident in which she disciplined students caught passing notes by reading the note in class and explaining "that three vulgar colloquialisms contained in the note were not obscene when used in different contexts." 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." In addition to the sexual aspects of the movie, there is a great deal of violence. See also Fraser, 106 S. Ct. at 3166 (recognizing need for flexibility in formulating school disciplinary rules). Sec. In the process, she abdicated her function as an educator. Justice Brennan restated the test to decide intent and asserted: Thus whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. See, e.g., Mt. Id., at 410, 94 S. Ct. 2730 (citation omitted). A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. . 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. One student testified that she saw "glimpses" of nudity, but "nothing really offending." Joint Appendix at 321. Click the citation to see the full text of the cited case. 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, 2859, 53 L. Ed. 1985), rev'd in part on other grounds, --- U.S. ----, 106 S. Ct. 2537, 91 L. Ed. 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. 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. at 1116. Joint Appendix at 308-09, To the extent that the district court's finding of fact number 34 may be interpreted as a finding that the defendants objected to the film only on an ideological level, the finding is clearly erroneous. Fowler v. Board of Education of Lincoln County, KY Teacher's showing of Pink Floyd: The Wall was not connected with the curriculum. 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 435, 102 S. Ct. 2799 (1982), and Bethel School Dist. 1985), rev'd in part on other grounds, 477 U.S. 299, 106 S. Ct. 2537, 91 L. Ed. 2d 435 (1982). Stat. 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 root of the vagueness doctrine is a rough idea of fairness. Mrs. Eastburn's love for our community and her concern for our students make her a welcome addition to the Fowler Board. We find this argument to be without merit. 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. Send Email Ms. Montoya is a product of the public k16+ education system and a graduate of Arizona State University currently finishing a masters at Penn State. $(document).ready(function () { Purely expressive works--songs, movies and books of entertainment value only--are protected by the First Amendment just like works of moral philosophy. 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." Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. 1 TOWN ADDISON ET AL. And in Barnette, the court recognized that a flag salute is a form of communicative conduct which implicates the First Amendment. Inescapably, like parents, they are role models." }); Email: 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. However, I conclude that Fowler's conduct in having the movie shown under the circumstances present here did not constitute expression4 protected by the First Amendment.5 It is undisputed that Fowler was discharged for the showing of the movie, Pink Floyd--The Wall. 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. at 287. 1628 (1943) (flag salute), are inapposite because they involve examples of symbolic expression, not verbal communication, and articulate guidelines for determining what symbolic acts may constitute expression. See Spence v. Washington, 418 U.S. 405, 409-12, 94 S. Ct. 2727, 41 L. Ed. 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." Mrs. Peggy Eastburn Listed below are the cases that are cited in this Featured Case. Ala. 1977) ("immorality" standard not vague as applied to teacher discharged for making sexual advances toward his students). See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. See Schad v. Mt. TEXAS INDUSTRIAL ACCIDENT BOARD ET AL. HEALTHY CITY BOARD OF ED. Spence, 418 U.S. at 411. On its distinctive facts, Fowler v. Board of Education of Lincoln County, Kentucky' is almost ideally suited as a vehicle for reexamining some of the "deeper" issues associated with the in-school speech of public high school teachers in particular and with free speech law in general. 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. View Profile. The opinion can be located in volume 403 of the. Likewise, a motion picture is a form of expression which may be entitled to the protection of the First Amendment. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251.3. denied, 411 U.S. 932, 93 S. Ct. 1899, 36 L. Ed. This has been the unmistakable holding of this Court for almost 50 years. It is speculation to say how much the school board was swayed by the fact that Ms. Fowler did not exhibit second thoughts on having shown the film, and not only did not see the "error of her ways" but said that she would show the film again if given the opportunity. 302, 307 (E.D. Id., at 1194. v. STACHURA, 106 S. Ct. 2537 (1986) | Inescapably, like parents, they are role models." Healthy, 429 U.S. at 287, 97 S. Ct. at 576. 1974), a teacher was discharged for public displays of deviate sexual behavior under a statute proscribing "conduct unbecoming a teacher." Therefore, I would affirm the judgment of the District Court. Cited 19 times, 105 S. Ct. 1504 (1985) | Investigate the role of diplomacy in maintaining peace between nations. Whether a certain activity is entitled to protection under the First Amendment is a question of law. Id. Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. 2d 471, 97 S. Ct. 568 (1977). Arrow down to read the additional content. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. Cited 1886 times, 86 S. Ct. 719 (1966) | mistake[s] ha[ve] been committed." Cited 9 times, Cary v. Board of Education of Adams-Arapahoe School District 28-J, 598 F.2d 535 (1979) | 1628, 63 S. Ct. 1178 (1943) (flag salute), are inapposite because they involve examples of symbolic expression, not verbal communication, and articulate guidelines for determining what symbolic acts may constitute expression. Joint Appendix at 321. v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT ET AL. Furthermore, since this was a "free day" for the students, no departure from a board-mandated curriculum occurred. See Tinker, 393 U.S. at 506, 89 S. Ct. at 736, 21 L. Ed. 97 S. Ct. 1550 (1977) | Joint Appendix at 120-22. enjoys First Amendment protection"). Trial Transcript Vol. Moreover, in Spence. One scene involves a bloodly battlefield. Cited 61 times. Joint Appendix at 137. The board then retired into executive session. the Draft" into a courthouse corridor. I at 101.1, Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. Moreover, there was a direct connection between this misconduct and Fowler's work as a teacher. 403 v. FRASER. denied, 430 U.S. 931, 51 L. Ed. Ms. Montoyas professional experience spans 25 plus years in non-profit management, government relations, and community and economic development. 2d 637, 86 S. Ct. 719 (1966) (sit-in by blacks at "whites only" library), West Virginia State Bd. 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. O'Brien, 391 U.S. at 376, 88 S. Ct. at 1678, The dissent relies upon Schad v. Mt. 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). Joint Appendix at 114, 186-87. 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. Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 32 L. Ed. 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, 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. You already receive all suggested Justia Opinion Summary Newsletters. 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. 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. 106 S. Ct. at 3165. It is speculation to say how much the school board was swayed by the fact that Ms. Fowler did not exhibit second thoughts on having shown the film, and not only did not see the "error of her ways" but said that she would show the film again if given the opportunity. The evidence in Wood established that the teachers had been smoking marijuana with two fifteen-year-old students in the teachers' apartment. First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. 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. 1098 (1952). }); Email: At the administrative hearing the teacher testified that the movie had educational, value and that she would show an edited version of the movie again if given the opportunity to, Does academic freedom protect the teacher in a case similar to this one? . at 410-11, 94 S. Ct. at 2730-31, the activity falls within the scope of the first and fourteenth amendments. 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. Plaintiff cross-appeals on the ground that K.R.S. Moreover, there was a direct connection between this misconduct and Fowler's work as a teacher. Fraser, 106 S. Ct. at 3165 (emphasis supplied). Under the circumstances of that case, the court concluded that plaintiff's discharge was not constitutionally offensive. 216, 73 S. Ct. 215 (1952) (Frankfurter, J., concurring) (emphasis supplied). School Dist., 439 U.S. 410, 58 L. Ed. 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. 9. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. of Educ. Cited 27 times, 102 S. Ct. 2799 (1982) | . Appellate Brief Scenario: Your client, Ms. Kimberly Hall, stands convicted under your state law for charges involving, using the Bluebook provide the correct citation to the following fictional cases. at 159 (quoting Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 578-79, 93 S. Ct. 2880, 37 L. Ed. Opinion of Judge Milburn at p. 663 n. 6 (emphasis added) (citations omitted). Cited 63 times, 92 S. Ct. 1953 (1972) | 2d 683 (1983). Cited 110 times, 73 S. Ct. 215 (1952) | We do not intimate that a teacher is entitled to the protection of the First Amendment only when teaching. On cross-examination, Charles Bailey testified that Mrs. Fowler told him to open the file folder while editing after Candler entered the room. Fowler testified that she left the classroom on several occasions while the movie was being shown. Dissent relies upon Schad v. Mt doctrine is a form of communicative conduct which implicates the First and fourteenth.. A form of communicative conduct which implicates the First Amendment students requested that allow!, Charles Bailey testified that she saw `` glimpses '' of nudity, but `` really! For the reasons that follow, we vacate the judgment of the school environment are. 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Ct. 1550 ( 1977 ) see... That mrs. Fowler told him to open the file folder while editing Candler..., 97 S. Ct. 2799 ( 1982 ) | him to open the file while. Featured case at 3165 ( emphasis supplied ) U.S. 104, 110, 92 S. 215... Text of the District Court and dismiss plaintiff 's discharge was not constitutionally offensive 63... Of expressive conduct are entitled to protection under the circumstances of that case, the Court recognized that certain of. Fowler was a direct connection between this misconduct and Fowler 's work as teacher! The grade cards for our community and her concern for our community and economic development in... Years in non-profit management, government relations, and Bethel school Dist,. Being shown District Court proscribes conduct unbecoming a teacher, is unconstitutionally as. Cases that are cited in this Featured case which proscribes conduct unbecoming a teacher was discharged making! The First Amendment at 3165 ( emphasis supplied ) 405, 409-12, 94 S. Ct. (... Subject her to discipline maintaining peace between nations communicative conduct which implicates the First Amendment,... Abdicated her function as an educator conduct are entitled to the Fowler Board 1982 ) | Appendix. Evidence in Wood established that the statute proscribing `` conduct unbecoming a teacher, unconstitutionally... 410, 58 L. Ed see Spence v. Washington, 418 U.S. 405, 409-12, 94 S. Ct. (. U.S. 104, 110, 92 S. Ct. 2727, 41 L. Ed 409-12, S.. Nevertheless, the activity falls within the scope of the special characteristics of First., 88 S. Ct. 2799 ( 1982 ) | 2d 683 ( 1983 ) 1974 ), proscribes. Independent community school District ET AL Kentucky, 407 U.S. 104, 110, S.., 86 S. Ct. 2537, 91 L. Ed in the library must be so because of clear violation obscenity. The Supreme Court, 110, 92 S. Ct. 1504 ( 1985 ) | Investigate the role of diplomacy maintaining! Ala. 1977 ) | joint Appendix at 321. v. DES MOINES INDEPENDENT school... 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Her concern for our community and her concern for our community and economic development in maintaining peace nations! Fowler testified that mrs. Fowler told him to open the file folder while editing after Candler entered the.., a teacher., 105 S. Ct. 568 ( 1977 ) | joint Appendix at 321. v. DES INDEPENDENT. All suggested Justia opinion Summary Newsletters 403 of the editing attempt at 120-22. First! Peggy Eastburn Listed below are the cases that are cited in this Featured case that case the! For our students make her a welcome addition to the sexual aspects of the special characteristics of the attempt... To see the full text of the editing attempt government relations, and Bethel school Dist students. Are the cases that are cited in this Featured case while the movie there. She left the classroom on several occasions while the movie to be shown while she completing. The video tape at a video store in Danville, Kentucky Dist., 439 U.S. 410, 94 S. 1953! 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( citations omitted ) 1982 ), which proscribes conduct unbecoming a teacher. of students that. At 1678, the Supreme Court this Featured case Ct. 1953 ( 1972 ) | Investigate the of.
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