Sec. of Educ.. (opinion of Powell, J.) The evidence in Wood established that the teachers had been smoking marijuana with two fifteen-year-old students in the teachers' apartment. 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.. It is undisputed that the audio portion of the movie, which contained enough offensive language to mandate an automatic "R" rating under motion picture industry standards, was played through the entire movie. Circuit Court of Appeals voted 2-1 last June to overturn the trial judge and uphold the firing. 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. of Lincoln Cty .. 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. That a teacher does have First Amendment protection under certain circumstances cannot be denied. 487, 78 L.Ed.2d 683 (1983). And in Barnette, the court recognized that a flag salute is a form of communicative conduct which implicates the First Amendment. THE BUNCOMBE COUNTY BOARD OF EDUCATION; Charles Johnson, Chairman; Michael Anders; Terry Roberson; Bruce Goforth; Bill Williams; Grace Brazil; Wendell Begley; Dr. J. Frank Yeager, Superintendent; Fred Ivey, Principal; each in his/her individual and official capacity, Defendants-Appellees. 733, 736, 21 L.Ed.2d 731 (1969). at 576. Relying on Fowler v. Board of Education. 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. Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing, There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. Joint Appendix at 120-22. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. O'Brien, 391 U.S. at 376, 88 S.Ct. 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. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. 1979). She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. at 3165 (quoting Ambach, 441 U.S. at 76-77, 99 S.Ct. For example, in Frison v. Franklin County Board of Education, 596 F.2d 1192 (4th Cir. 302, 307 (E.D.Tex. . at 2806-09. Only three justices agreed that students possess a constitutionally protected entitlement to access to particular books in the school's library. Emergency Coalition v. U.S. Dept. It is obvious, therefore, that Mrs. Fowler's discharge was prompted by the content of the movie. 3273, 91 L.Ed.2d 563 (1986); Smith v. Price, 616 F.2d 1371, 1379 n. 10 (5th Cir. 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. 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. In the present case, we conclude that plaintiff's conduct, although not illegal, constituted serious misconduct. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. at 307; Parducci v. Rutland, 316 F. Supp. 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. at 2730. of Treasury, Civil Action No. mistake[s] ha[ve] been committed." 525, 542, 92 L.Ed. The board then retired into executive session. Finally, the district court concluded that K.R.S. Another scene shows children being fed into a giant sausage machine. Fraser, 106 S.Ct. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251. Healthy, 429 U.S. at 287, 97 S.Ct. 3. As herein above indicated, I concur in the result reached in Judge Milburn's opinion. 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. Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge. A number of courts have rejected vagueness challenges when an employee's conduct clearly falls within a statutory or regulatory prohibition. 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. These cases do not lend themselves to the reverse purpose of defining what kind of communication can not be expressive. But a panel of the 6th U.S. Id., at 862, 869, 102 S.Ct. The students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen. 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. 568, 50 L.Ed.2d 471 (1977). of Educ., 431 U.S. 209, 231, 97 S.Ct. 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. Joint Appendix at 129-30. 2176, 68 L.Ed.2d 671 (1981), and Zacchini v. Scripps-Howard Broadcasting casting Co., 433 U.S. 562, 97 S.Ct. Inescapably, like parents, they are role models." On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. Id. Fowler v. Board of Education of Lincoln County, (1978) 819 F.2d 657 Management Resources: She has lived in the Fowler Elementary School District for the past 22 years. 215, 221, 97 L.Ed. The dissent accurately points out that "the school board did not like the content of the movie" but their 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 and cannot survive the "but for" test of Mt. Advanced A.I. board could dismiss a tenured high school teacher with 14 years of experience for insubordination and conduct unbecoming an educator for showing Pink Floyd: The Wall on the last day of the academic year considered a noninstructional day (Fowler v. Board of Education of Lincoln County, Ky. 1987a, 1987b). 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." Opinion of Judge Peck at p. 668. Jarman v. Williams, 753 F.2d 76, 77-78 (8th Cir. Bryan, John C. Fogle, argued, Mt. Plaintiff cross-appeals from the holding that K.R.S. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. No. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action. It is also undisputed that she left the room on several occasions while the film was being shown. 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." The justices, without comment, let stand a ruling that the teachers free- expression rights were not violated. 1552, 51 L.Ed.2d 775 (1977); diLeo v. Greenfield, 541 F.2d 949 (2d Cir. Subscribers can access the reported version of this case. 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. "Consciously or otherwise, teachers . 2849, 2859, 53 L.Ed.2d 965 (1977) ("no doubt that entertainment . 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. Another shows the protagonist cutting his chest with a razor. the Draft" into a courthouse corridor. Plaintiff Fowler received her termination notice on or about June 19, 1984. Ephraim, 452 U.S. 61, 101 S.Ct. 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. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. Another shows the protagonist cutting his chest with a razor. In my view, both of the cases cited by the dissent are inapposite. See also Abood v. Detroit Bd. 719, 15 L.Ed.2d 637 (1966) (sit-in by blacks at "whites only" library), West Virginia State Bd. 1972), cert. Joint Appendix at 291. Id., at 159, 94 S.Ct. See Minarcini v. Strongsville City School Dist., 541 F.2d 577 (6th Cir. 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. 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." -The district court ruled in favor of Fowler, concluding that her actions are indeed protected under the First Amendment. 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. 1969)). Therefore, I would affirm the judgment of the District Court. Fowler v. Board of Education of Lincoln County (1987): ACADEMIC FREEDOM (Pink Floyd's "The Wall") Facts: district dismissed teacher based on unbecoming conduct (unique to Kentucky) after teacher showed the movie, Pink Floyd's "the wall" to high school students These cases are based upon the notion that teaching is a form of activity protected by the First Amendment. at p. 664. Moreover, there was a direct connection between this misconduct and Fowler's work as a teacher. On cross-examination, Charles Bailey testified that Mrs. Fowler told him to open the file folder while editing after Candler entered the room. District Court Opinion at 23. 6th Circuit. 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. 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. We find this argument to be without merit. 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 2810. Finally, we must determine whether plaintiff's conduct constituted "conduct unbecoming a teacher" within the meaning of Ky.Rev.Stat. Fisher v. Snyder, 476375 (8th Cir. ), aff'd en banc, 425 F.2d 472 (D.C. Cir. either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." 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. at 2730. 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. She stated that she did not at any time discuss the movie with her students because she did not have enough time. 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. at 3166 (recognizing need for flexibility in formulating school disciplinary rules). On July 10, 1984, plaintiff Fowler appeared with counsel at the administrative hearing. Thus, this case is distinguishable from those in which the Supreme Court has afforded First Amendment protection in cases involving expressive conduct. Joint Appendix at 321. of Tipp City, No. 1953, 1957, 32 L.Ed.2d 584 (1972). at 2805-06, 2809. 568, 50 L.Ed.2d 471 (1977). Id. at 1678. FOWLER v. BOARD OF EDUC. 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. Under circumstances such as these, I cannot conclude that Fowler possessed "[a]n intent to convey a particularized message" to her students. Sterling, Ky., for defendants-appellants, cross-appellees. 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. Plaintiff Fowler received her termination notice on or about June 19, 1984. 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. v. Doyle, 429 U.S. 274, 97 S.Ct. In Cohen v. California, 403 U.S. 15, 91 S.Ct. Joint Appendix at 265-89. ACCEPT. Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge. Healthy cases of Board of Educ. 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. denied, 411 U.S. 932, 93 S.Ct. In the process, she abdicated her function as an educator. In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her First Amendment rights. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. ." The board viewed the movie once in its entirety and once as it had been edited in the classroom. I would hold, rather, that the district court properly used the Mt. See also Ambach, 441 U.S. at 76-77, 99 S.Ct. See also Board of Education v. McCollum, 721 S.W.2d 703 (Ky. 1986) (upholding discharge for conduct unbecoming a teacher when teacher filed false affidavit regarding sick leave and lied about time spent with student in course of special home instruction program). The lm includes violent Id. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. Mt. 529, 34 L.Ed.2d 491 (1972). 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. Consequently, the focus of our inquiry is whether Fowler's conduct was constitutionally protected. Lincoln County School Board 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 . There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. Joint Appendix at 291. 08-10557. As we have noted, the "R" rated movie was shown on a noninstructional day to students in Fowler's classes in grades nine through eleven who were of ages ranging from fourteen through seventeen. Another shows police brutality. 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. 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. Counts v. Cedarville School District Books put on reserve in the library must be so because of clear violation of obscenity rules. Spence, 418 U.S. at 410, 94 S.Ct. 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