See also Ambach, 441 U.S. at 76-77. " In the present case the district court concluded that Mrs. Fowler was entitled to the protection of the First Amendment while acting as a teacher. Citations are also linked in the body of the Featured Case. Healthy. Joint Appendix at 114, 186-87. The district court found that the movie "contains a very limited amount of material which is sexually suggestive," that the movie does not contain "any 'simulation' of a sexual act," and that "any scenes involving nudity or suggestive conduct were edited from the view of students" during both showings. 161.790(1) (b), which proscribes "conduct unbecoming a teacher," is unconstitutionally vague as applied to her because the statute failed to give notice that her conduct would result in discipline. 631 F.2d 1300 - ZYKAN v. WARSAW COMMUNITY SCHOOL CORP.. 670 F.2d 771 - PRATT v. IND. 1986); Zykan v. Warsaw Community School Corp., 631 F.2d 1300 (7th Cir. 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. of Educ. 352, 356 (M.D. Spence v. Washington, 418 U.S. 405, 409-10, 94 S. Ct. 2727, 2729-30, 41 L. Ed. 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." Opinion of Judge Peck at p. 668. It is of vital importance to them to employ individuals who take the initiative to provide the best programs, strategies, and learning environment for all of our students. District Court Opinion at 6. 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. Joint Appendix at 83, 103, 307. 1)The US Supreme Court ruled on Thompson v. Kentucky in 2010. v. Barnette, 319 U.S. 624, 87 L. Ed. the Draft" into a courthouse corridor. Id., at 862, 869, 102 S. Ct. at 2805-06, 2809. There is conflicting testimony as to whether, or how much, nudity was seen by the students. In my view this case should be decided under the "mixed motive" analysis of Mt. Consciously or otherwise, teachers. Cited 52 times, 469 F.2d 623 (1972) | 2d 471 (1977), as suggested by Judge Merritt's dissent, particularly when viewed in the context of the post-Mt. 831, 670 F.2d 771 (1982) | Plaintiff relies on Minarcini v. Strongsville City School District, 541 F.2d 577 (6th Cir. Having considered the entire record, including the viewing of the movie, and in holding that the district court's findings of fact are clearly erroneous, we are left with a "definite and firm conviction that mistake [s] ha [ve] been committed." The fundamental principles of due process are violated only when "a statute . Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 1957, 32 L. Ed. Similarly, in Wishart v. McDonald, 500 F.2d 1110 (1st Cir. 1984). Cited 15 times, 805 F.2d 583 (1986) | We conclude that the statute proscribing "conduct unbecoming a teacher" gave her adequate notice that such conduct would subject her to discipline. High School (D. . OF ED.. 611 F.2d 1109 - KINGSVILLE INDEPENDENT SCH. Id. 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. 403 ET AL. Fowler rented the video tape at a video store in Danville, Kentucky. I agree with both of these findings. 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. A number of courts have rejected vagueness challenges when an employee's conduct clearly falls within a statutory or regulatory prohibition. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. He expresses the further view that there was "little likelihood that the message would be understood by those who viewed it," id. Ms. Montoya's professional experience spans 25 plus years in non-profit management, government relations, and community and economic development. O'Brien, 391 U.S. at 376. . Cited 5890 times, 103 S. Ct. 1855 (1983) | at 307; Parducci v. Rutland, 316 F. Supp. 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. Joint Appendix at 114, 186-87. The evidence in Wood established that the teachers had been smoking marijuana with two fifteen-year-old students in the teachers' apartment. 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." 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. Trial Transcript Vol. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. FOWLER v. BOARD OF EDUC. 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. Moreover, the surrounding circumstances in the present case indicate that there was little likelihood "that the message would be understood by those who viewed it." 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. 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."). 2d 965 (1977), for the general proposition that entertainment enjoys First Amendment protection. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence. She introduced a controversial and sexually explicit movie into a classroom of adolescents without preview, preparation or discussion. That a teacher does have First Amendment protection under certain circumstances cannot be denied. . 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. However, for the reasons stated below I would hold that the school board properly discharged Ms. Fowler. of Educ., 429 U.S. 274, 50 L. Ed. 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. I would hold, rather, that the district court properly used the 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. 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. 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. View Profile. Cited 6 times, Frison v. Franklin County Board of Education, 596 F.2d 1192 (1979) | ." The vagueness doctrine requires that a statute proscribing certain conduct must be drafted "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Joint Appendix at 291. They also found the movie objectionable because of its sexual content, vulgar language, and violence. ), cert. 3. Consequently, the focus of our inquiry is whether Fowler's conduct was constitutionally protected. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. WEST VIRGINIA STATE BOARD EDUCATION ET AL. (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. 85-5815, 85-5835. 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. 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. One scene involves a bloody battlefield. 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. Cited 1917 times, 631 F.2d 1300 (1980) | Send Email Bd. It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. "To regard teachers--in our entire educational system, from the primary grades to the university--as the priests of our democracy is therefore not to indulge in hyperbole." O'Brien, 391 U.S. at 376, 88 S. Ct. at 1678, The dissent relies upon Schad v. Mt. GIVHAN v. WESTERN LINE CONSOLIDATED SCHOOL DISTRICT ET AL. Cited 9 times, 753 F.2d 76 (1985) | One scene involves a bloodly battlefield. Sec. of Educ. Rather, the proper focus of our inquiry is whether Fowler was engaged in expressive activity protected by the First Amendment, and nothing in the record would indicate that she was so engaged. She stated that she did not at any time discuss the movie with her students because she did not have enough time. Ephraim, 452 U.S. 61, 65-66, 101 S. Ct. 2176, 2181, 68 L. Ed. Id., at 583. 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, 87 L. Ed. tion for showing R-rated films, as evidenced by Fowler v. Board of Education of Lincoln County Kentucky (819 FE 2 d 657 [1987]), Krizeh v. Cicero-Stichley TP. Trial Transcript Vol. $('span#sw-emailmask-5381').replaceWith(''); 1. She has lived in the Fowler Elementary School District for the past 22 years. 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. 97 S. Ct. 1550 (1977) | 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. . NO. 1976) (finding no constitutional violation in the Board's exercise of curriculum and textbook control, while, at the same time, determining that the Board had wrongly removed books from the library). 2d 563 (1986); Smith v. Price, 616 F.2d 1371, 1379 n.10 (5th Cir. 2d 629, 87 S. Ct. 675 (1967) (discussing importance of academic freedom). View Profile. For example, in Frison v. Franklin County Board of Education, 596 F.2d 1192 (4th Cir. See 4 Summaries. The opinion can be located in volume 403 of the. I believe a teacher should be similarly protected by the First Amendment whether she is participating in an instructional or non-instructional day. 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. Plaintiff cross-appeals on the ground that K.R.S. Joint Appendix at 113-14. Fraser, 106 S. Ct. at 3165 (quoting Ambach, 441 U.S. at 76-77, 99 S. Ct. at 1594-95, and Tinker, 393 U.S. at 508, 89 S. Ct. at 737). Id. Having considered the entire record, including the viewing of the movie, which we describe as gross and bizarre and containing material completely unsuitable for viewing by a classroom of students aged fourteen to seventeen, we conclude that such conduct falls within the concept of conduct unbecoming a teacher under Kentucky law.10. This has been the unmistakable holding of this Court for almost 50 years. Any limitation on the exercise of constitutional rights can be justified only by a conclusion, based upon reasonable inferences flowing from concrete facts and not abstractions, that the interests of discipline or sound education are materially and substantially justified. "The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.". Id. I would hold, rather, that the district court properly used the Mt. 2d 471, 97 S. Ct. 568 (1977). . at 839-40. $(document).ready(function () { Joint Appendix at 113-14. Bd. 8. 2d 549 (1986) (quoting Ambach v. Norwick, 441 U.S. 68, 76-77, 60 L. Ed. 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." She is the director of community development at Raza Development Fund, a national community development financial institution. 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. She argued that the statute governing her demotion, which required teachers to maintain discipline and encourage morality, failed to give adequate notice that her conduct was a ground for discipline. In addition to the sexual aspects of the movie, there is a great deal of violence. 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. Thus, this case is distinguishable from those in which the Supreme Court has afforded First Amendment protection in cases involving expressive conduct. 717 S.W.2d 837 - KENTUCKY BAR ASSOCIATION v. HARRIS. See, e.g., Mt. 2d 775, 97 S. Ct. 1552 (1977); diLeo v. Greenfield, 541 F.2d 949 (2d Cir. 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. Mrs. Eastburn has resided in the Fowler community for nearly 30 years, and all of her children attended Fowler schools. In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. at 839-40. See Minarcini v. Strongsville City School Dist., 541 F.2d 577 (6th Cir. 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. 1974), a teacher was discharged for public displays of deviate sexual behavior under a statute proscribing "conduct unbecoming a teacher." Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. the Draft" into a courthouse corridor. Id., at 1194. Id., at 863-69, 102 S. Ct. at 2806-09. 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. v. Doyle, 429 U.S. 274, 285-87, 97 S. Ct. 568, 575-76, 50 L. Ed. Another shows the protagonist cutting his chest with a razor. If [plaintiff] shows " [a]n intent to convey a particularized message and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it," id. Cited 115 times, In re Certain Complaints Under Investigation, 783 F.2d 1488 (1986) | 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. Any limitation on the exercise of constitutional rights can be justified only by a conclusion, based upon reasonable inferences flowing from concrete facts and not abstractions, that the interests of discipline or sound education are materially and substantially justified . View Profile. Joint Appendix at 82-83. Id. The message is that unloving, overly rigid and authoritarian parents, teachers, judges and officials create disturbed individuals and societies. 1098 (1952). Cited 210 times, Kingsville Independent School District v. Cooper, 611 F.2d 1109 (1980) | 1980); Cary v. Board of Education, 598 F.2d 535, 539-42 (10th Cir. Healthy, 429 U.S. at 287. A tenured teacher's employment was ended because she had an "R" rated movie, shown to her high school students on the last day of the school year. The more important question is not the motive of the speaker so much as the purpose of the interference. The court disagreed, concluding that " [t]he regulations prescribing a teacher's speech and conduct are necessarily broad; they cannot possibly mention every type of misconduct." That a teacher does have First Amendment protection under certain circumstances cannot be denied. Joint Appendix at 83, 103, 307. In my view this case should be decided under the "mixed motive" analysis of Mt. The Court in Mt. search results: Unidirectional search, left to right: in . 2d 637 (1966) (sit-in by blacks at "whites only" library), West Virginia State Bd. 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. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. District Court Opinion at 6. 397 (M.D. 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." 869, 102 S. Ct. at 2806-09 the focus of our inquiry is whether Fowler conduct... Discussing importance of academic freedom ) ( 1979 ) |. community School Corp. 631... 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