concurring.
I agree with Judge Milburn’s decision that the school board’s termination of Ms. *667Fowler’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. In my view this case should be decided under the “mixed motive” analysis of Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977), as suggested by Judge Merritt’s dissent, particularly when viewed in the context of the post-Mt. Healthy cases of Board of Educ. v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982), and Bethel School Dist. v. Fraser, — U.S. —, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). However, for the reasons stated below I would hold that the school board properly discharged Ms. Fowler.
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. He finds that Ms. Fowler did not possess “[a]n intent to convey a particularized message” to her students because she was not familiar with the content of the film before she showed it, citing Spence v. Washington, 418 U.S. 405, 410, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974). He expresses the further view that there was “little likelihood that the message would be understood by those who viewed it,” id., at 411, 94 S.Ct. 2730, because Fowler did not explain the messages contained in the film to the students. I would suggest that the rationale underlying Spence v. Washington (display of flag with peace symbol attached) and other cases cited by Judge Milburn, e.g., Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (sit-in by blacks at “whites only” library), West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (flag salute), are inappo-site because they involve examples of symbolic expression, not verbal communication, and articulate guidelines for determining what symbolic acts may constitute expression. These cases do not lend themselves to the reverse purpose of defining what kind of communication can not be expressive. This court, in my opinion, should not offer an advisory opinion as to what constitutes an intent to communicate and how much knowledge of the content of a presentation is needed before it can be embraced as one’s own expression. The more important question is not the motive of the speaker so much as the purpose of the interference. 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.
The Supreme Court in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 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.” I believe a teacher should be similarly protected by the First Amendment whether she is participating in an instructional or non-instructional day. See, e.g., Mt. Healthy City School Dist. Bd. 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. School Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.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). Certainly there is greater cause for school board interference when acting within its discretion to establish curriculum, and therefore in requiring a teacher to follow the prescribed curriculum. See Minarcini v. Strongsville City School Dist, 541 F.2d 577 (6th Cir.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).
I would hold, rather, that the district court properly used the Mt. 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 *668communicating various ideas and political thoughts to her students, she would not have been fired. The Court in Mt. 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. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576.
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 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 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. 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 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. Healthy. 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.
The Mt. Healthy case, involving actions by a teacher outside the school environment, must be viewed in light of the court’s deference to the autonomy of school boards in regulating the educational process. The plurality opinion of Pico used the Mt. Healthy case as precedent to decide whether the school board in that case acted properly in removing books from the school library. 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. 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.
Pico, 477 U.S. at 871,102 S.Ct. at 2810.
Justice Brennan apparently concludes that a school board may make proper objections to content that is pervasively vulgar or educationally unsuitable but warns that this may not be asserted to mask a decision interfering with the communication of political ideas with which they disagree. The objections to the method of communication in the film at issue in the present case cannot be seen as a sham or cover-up but as valid objections to a film the board thought inappropriate for classroom viewing.
The Court in the recent case of Bethel School Dist. 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. 106 S.Ct. at 3165. This court need not go as far as the Court did in Pico and Bethel because those cases respectively involved school library and a school assembly and did not have the captive audience factor with the teacher acting in loco parentis that is present in this case.
As herein above indicated, I concur in the result reached in Judge Milburn’s opinion.