819 F.2d 657 (6th Cir. 1987), 85-5815, Fowler v. Board of Educ. of Lincoln County, Ky.

Docket Nº:85-5815, 85-5835.
Citation:819 F.2d 657
Party Name:Jacqueline FOWLER, Plaintiff-Appellee, Cross-Appellant, v. The BOARD OF EDUCATION OF LINCOLN COUNTY, KENTUCKY; Joseph G. Blair, Individually and As Superintendent of the Lincoln County Schools; Lloyd McGuffey; Jimmy Cooper; Ivan Singleton; Tom Blankenship; and Paul Playforth, Individually and Each in His Official Capacities, Respectively, As a Memb
Case Date:June 01, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 657

819 F.2d 657 (6th Cir. 1987)

Jacqueline FOWLER, Plaintiff-Appellee, Cross-Appellant,



G. Blair, Individually and As Superintendent of the Lincoln

County Schools; Lloyd McGuffey; Jimmy Cooper; Ivan

Singleton; Tom Blankenship; and Paul Playforth,

Individually and Each in His Official Capacities,

Respectively, As a Member of the Board of Education of

Lincoln County, Kentucky, Defendants- Appellants, Cross-Appellees.

Nos. 85-5815, 85-5835.

United States Court of Appeals, Sixth Circuit

June 1, 1987

Argued Feb. 17, 1987.

Rehearing and Rehearing En Banc Denied July 21, 1987.

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James W. Williams, III, Rankin, Baker and Williams, Stanford, Ky., Robert L. Chenoweth, Bryan, Fogle and Chenoweth, Mt. Sterling, Ky., F.C. Bryan, John C. Fogle, argued, Mt. Sterling, Ky., for defendants-appellants, cross-appellees.

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.

Before MERRITT and MILBURN, Circuit Judges, and PECK, Senior Circuit Judge.

MILBURN, Circuit Judge.

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. Plaintiff cross-appeals on the ground that K.R.S. Sec. 161.790(1), which proscribes conduct unbecoming a teacher, is unconstitutionally vague as applied to her conduct. For the reasons that follow, we vacate the judgment of the district court and dismiss plaintiff's action.


Plaintiff Jacqueline Fowler was a tenured teacher employed by the Lincoln County, Kentucky, school system for fourteen years. She was discharged in July, 1984 for insubordination and conduct unbecoming a teacher. 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 students in Fowler's classes were in grades nine through eleven and were of the ages fourteen through seventeen.

The day on which the movie was shown, May 31, 1984, was a noninstructional day used by teachers for completing grade cards. A group of students requested that Fowler allow the movie to be shown while she was completing the grade cards. Fowler was unfamiliar with the movie and asked the students whether it was appropriate for viewing at school. Charles Bailey, age fifteen, who had seen the movie on prior occasions, indicated that the movie had "one bad place in it." Joint Appendix at 291.

Fowler rented the video tape at a video store in Danville, Kentucky. 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. Joint Appendix at 82-83. 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. Joint Appendix at 83, 103, 307.

When Fowler had the movie shown on the morning of May 31, 1984, she instructed Charles Bailey, the fifteen-year-old student who had seen the movie, to edit out any parts that were unsuitable for viewing at school. He did so by attempting to cover the 25"' screen with an 8 1/2"' by 11"' letter-sized file folder. Joint Appendix at 83-84.

There is conflicting testimony as to whether, or how much, nudity was seen by the students. At the administrative hearing, several students testified that they saw no nudity. Joint Appendix at 265-89. One student testified that she saw "glimpses" of nudity, but "nothing really offending." Joint Appendix at 321. Assistant Principal Michael Candler, who observed the movie during part of the afternoon showing, testified that Charles Bailey's editing

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attempt was not sufficient to preclude the students from seeing the nudity. Joint Appendix at 242-46. On cross-examination, Charles Bailey testified that Mrs. Fowler told him to open the file folder while editing after Candler entered the room. Trial Transcript Vol. I at 108-09. 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. Joint Appendix at 114, 186-87.

There is also conflicting testimony regarding the amount of sexual innuendo existing in the "unedited" version of the film. Because some parts of the film are animated, they are susceptible to varying interpretations. 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. This segment of the film was shown in the morning session. Joint Appendix at 120-22. 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. Trial Transcript Vol. I at 101. 1

Once again, there is conflicting testimony concerning the effectiveness of the editing attempt. Moreover, there is testimony supporting the fact that more editing was done in the afternoon showing than in the morning showing. 2

In addition to the sexual aspects of the movie, there is a great deal of violence. One scene involves a bloody battlefield. Joint Appendix at 129-30. Another shows police brutality. Joint Appendix at 132-33. Another shows the protagonist cutting his chest with a razor. Joint Appendix at 127. Another scene shows children being fed into a giant sausage machine. Joint Appendix at 137.

On the afternoon of May 31, 1984, Principal Jack Portwood asked Fowler to give him the video tape, and she did so. 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 Fowler received her termination notice on or about June 19, 1984. 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.

On July 10, 1984, plaintiff Fowler appeared with counsel at the administrative hearing. 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. She believed the movie portrayed the dangers of alienation between people and of repressive educational systems. She testified that she would show an edited

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version of the movie again if given the opportunity to explain it. She stated that she did not at any time discuss the movie with her students because she did not have enough time.

The board viewed the movie once in its entirety and once as it had been edited in the classroom. The board then retired into executive session. Following this executive session, the board returned to open session and voted unanimously to terminate plaintiff's employment for insubordination and conduct unbecoming a teacher.

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. She also alleged that the factual findings made in support of her discharge were not supported by substantial evidence.

At the bench trial in the district court, Fowler repeated her contention that she believed the movie contained important, socially valuable messages. School officials testified that they objected to the movie because it promoted values which were described as immoral, antieducation, antifamily, antijudiciary, and antipolice. Joint Appendix at 198, 200, 204, 207, 212, 223, 249-50, 255. They also found the movie objectionable because of its sexual content, vulgar language, and violence. Joint Appendix at 199, 201, 207, 212-13, 223, 226, 251. 3

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. 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.

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. Finally, the district court concluded that K.R.S. Sec. 161.790(1)(b) was not vague or overbroad, apparently for the reason that, because Fowler's conduct was protected by the First Amendment, such conduct "as a matter of fact and law did not constitute conduct unbecoming a teacher." District Court Opinion at 23.

In this appeal, defendants contend that the district court erred in its conclusion that plaintiff's discharge violated her...

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