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. The District Court held that the school board failed to carry this Mt. I at 108-09. 2d 842 (1974). ABOOD ET AL. 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." and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it," id. 717 S.W.2d 837 - KENTUCKY BAR ASSOCIATION v. HARRIS. Another shows police brutality. One particularly controversial segment of scenes is animated in which flowers appear on the screen, are transformed into the shape of male and female sex organs and then engage in an act of intercourse. Fowler rented the video tape at a video store in Danville, Kentucky. Bd. 2d 731 (1969). A number of courts have rejected vagueness challenges when an employee's conduct clearly falls within a statutory or regulatory prohibition. In the present case, we conclude that plaintiff's conduct, although not illegal, constituted serious misconduct. Cited 35 times. Cited 1239 times, MEMPHIS COMMUNITY SCHOOL DISTRICT ET AL. 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. 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. 2d 471 (1977), as suggested by Judge Merritt's dissent, particularly when viewed in the context of the post-Mt. 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. 2d 391 (1973); James v. Board of Education, 461 F.2d 566 (2d Cir. Cir. Nevertheless, the Supreme Court has long recognized that certain forms of expressive conduct are entitled to protection under the First Amendment. 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. Joint Appendix at 132-33. The purpose of teacher tenure laws is to promote good order in the school system by preventing the arbitrary removal of capable and experienced teachers by political or personal whim. A teacher is held to a standard of personal conduct which does not permit the commission of immoral or criminal acts because of the harmful impression made on the students. -The district court ruled in favor of Fowler, concluding that her actions are indeed protected under the First Amendment. BD. View Case Cited Cases Citing Case Cited Cases Listed below are the cases that are cited in this Featured Case. I agree with both of these findings. " Arnett, 416 U.S. at 161, 94 S. Ct. at 1648 (quoting Meehan v. Macy, 392 F.2d 822, 835 (D.C. 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. 2d at 737 James, 461 F.2d at 571. Joint Appendix at 129-30. 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. 26 v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. The root of the vagueness doctrine is a rough idea of fairness. v. JAMES. Trial Transcript Vol. Sec. 2d 842, 94 S. Ct. 2727 (1974). In Cohen v. California, 403 U.S. 15, 29 L. Ed. Healthy City School Dist. In the process, she abdicated her function as an educator. 93 S. Ct. 529 (1972) | 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. In Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 563 (1986); Smith v. Price, 616 F.2d 1371, 1379 n.10 (5th Cir. 746, 68 S. Ct. 525 (1948), and Anderson v. Bessemer City, 470 U.S. 564, 575, 84 L. Ed. Plaintiff cross-appeals from the holding that K.R.S. Id., at 840. 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. Furthermore, Fowler never at any time made an attempt to explain any message that the students might derive from viewing the movie. Cited 63 times, 92 S. Ct. 1953 (1972) | The existence of such a "right to know" was considered by the Supreme Court in Board of Education, Island Trees Union Free School District No. Moreover, there was a direct connection between this misconduct and Fowler's work as a teacher. 1 TOWN ADDISON ET AL. Cited 210 times, Kingsville Independent School District v. Cooper, 611 F.2d 1109 (1980) | denied, --- U.S. ----, 106 S. Ct. 3273, 91 L. Ed. That a teacher does have First Amendment protection under certain circumstances cannot be denied. . Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. Joint Appendix at 83, 103, 307. Id. She testified that she would show an edited version of the movie again if given the opportunity to explain it. Pico, 477 U.S. at 871, 102 S. Ct. at 2810. 2d 671 (1981), and Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S. Ct. 2849, 53 L. Ed. demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Healthy standard, a public employee establishes a prima facie case of a constitutional violation if she shows that she was engaged in protected activity, and that such activity was a substantial or motivating factor in the decision to terminate her employment. The school board was also motivated by the poor judgment used by the teacher in not previewing an R-rated film and in the cavalier manner in which she allowed the film to be shown and "edited" by a student. Healthy set the standard that once the plaintiff had shown that his conduct was constitutionally protected and that his conduct was a substantial or motivating factor in the Board's decision to discharge or not to rehire, the school board then must show that it would have reached the same decision even in the absence of the protected conduct. var encodedEmail = swrot13('rhtrar.xnaqnevna@sbjyre.x12.pn.hf'); 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." 831, 670 F.2d 771 (8th Cir. Joint Appendix at 291. Cf. 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). 783 F.2d 1488 - MATTER OF CERTAIN COMPLAINTS UNDER INVESTIGATION. Another shows the protagonist cutting his chest with a razor. OF HOPKINS COUNTY v. WOOD. 1974), a teacher was discharged for public displays of deviate sexual behavior under a statute proscribing "conduct unbecoming a teacher." 598 F.2d 535 - CARY v. BD. 1, 469 F.2d 623 (2d Cir. Tex. "Consciously or otherwise, teachers demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. . Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. The more important question is not the motive of the speaker so much as the purpose of the interference. v. Doyle, 429 U.S. 274, 285-87, 97 S. Ct. 568, 50 L. Ed. School Dist., 439 U.S. 410, 58 L. Ed. D.C. 38, 425 F.2d 469 (D.C. The school board stated insubordination as an alternate ground for plaintiff's dismissal. 1117 (1931) (display of red flag is expressive conduct). 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). Similarly, in Wishart v. McDonald, 500 F.2d 1110 (1st Cir. Cir. Cf. For similar reasons, plaintiff's reliance on Pratt v. Independent School District No. Safe Return to In-Person Instruction and Continuity Plan, Maintenance, Operations and Transportation & Facilities, Advancing Academic Achievement (AAA) Days. 1969); Dean v. Timpson Independent School District, 486 F. Supp. 2d 637 (1966) (sit-in by blacks at "whites only" library), West Virginia State Bd. See Tinker, 393 U.S. at 506, 89 S. Ct. at 736, 21 L. Ed. Plaintiff argues that Ky. Rev. Because we conclude that plaintiff's discharge may be upheld under the charge of conduct unbecoming a teacher, we need not reach this issue. 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. 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. Fowler testified that she left the classroom on several occasions while the movie was being shown. See generally Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S. Ct. 675, 683-84, 17 L. Ed. TEXAS INDUSTRIAL ACCIDENT BOARD ET AL. . She lost her case for reinstatement. The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. Ala. 1970), is misplaced. BOARD EDUCATION CENTRAL DISTRICT NO. 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. 1117 (1931) (display of red flag is expressive conduct). 2d 249 (1986); Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1113 (5th Cir. v. FRASER, 106 S. Ct. 3159 (1986) | The only official posting location is the notice board at the northwest corner of the district office at 1617 South 67th Avenue. 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. v. COOPER. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S. Ct. 777, 96 L. Ed. Cited 614 times, MT. 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. 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. 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. Sterling, Ky., F.C. v. Barnette, 319 U.S. 624, 87 L. Ed. Cited 880 times, WIRSING v. BOARD OF REGENTS OF THE UNIV. In the process, she abdicated her function as an educator. Joint Appendix at 114, 186-87. 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." She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. 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. The district court concluded that plaintiff was not insubordinate because she did not violate any established rule or regulation, nor did she refuse to obey the directions of her superiors. 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. 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