Nonconformist takes

A NONCONFORMIST TAKES A HIT

Editorial, St. Louis Post Dispatch, June 24, 1998 Academic Freedom

Academic freedom is the breathing space that our Constitution and our society give those pursuing knowledge. It is fundamental to individuality, to creativity and to the way we govern ourselves.

On Monday, that academic freedom was chipped away in a small but important way. The federal appeals court decision against Cissy Lacks limited the freedom of teachers to use controversial teaching methods to stir the intellectual curiosity of their students.

It was just a chip. But each chip that courts and legislatures take from the edge of academic freedom makes our community and our nation less vital, less interesting, less free.

Ms. Lacks was a veteran English teacher and newspaper adviser working at Berkeley Senior High School. She was a highly successful teacher but far from typical. She believed in and practiced a student-centered approach to learning, giving students broad latitude in the expression of their thoughts and feelings. Ms. Lacks would allow students to use raw, street language at first. She allowed them the freedom to show what they could do with the tools they had. Rather than censor or censure their crude early efforts, she supported them, moving them by degrees to more socially acceptable, and more sophisticated modes of self-expression. (The progress of one student is shown in the accompanying poems.)

Ms. Lacks' method isn't the only way to teach English. It may not be the best way. But it worked well for her kids, and she was known as one of the most successful teachers in the area.

Then came the fall of 1994. Students prepared videotaped plays that contained a lot of obscenities. Three months later one of her students complained to principal Vernon Mitchell. Mr. Mitchell began an inquiry and determined that Ms. Lacks had also permitted a student to read aloud a graphic description of oral sex as part of a poetry unit.

At a hearing later, Mr. Mitchell said he had warned Ms. Lacks about the use of obscenities in the school newspaper. Ms. Lacks said he hadn't warned her and that she thought the general school policy against student use of obscenity was meant for the hallways and cafeterias, not creative work in the classroom. Another teacher testified that there was confusion on this point. Nevertheless, the school board fired Ms. Lacks.

Last year a jury decided that the firing violated the First Amendment. The court ordered Ms. Lacks reinstated and awarded her $750,000. The lower court did not say that a teacher could let her students use any words they wanted in English class. It only said that a school district had to make it clear to a teacher that it had a policy against obscenity in creative work before it could fire her for violating it.

Judge Richard Arnold, writing for a three-judge appeals court, wiped out that sensible decision. He intimated that the school board might have gone overboard in firing Ms. Lacks, in light of her long, distinguished service. But he said that Missouri law concerning when a school board can terminate a contract required him to give the school board the benefit of the doubt. For that reason he had to assume that Mr. Mitchell had warned Ms. Lacks.

Judge Arnold erred when he moved on to the First Amendment issue and second-guessed the jury's determination that the school board had violated Ms. Lacks' constitutional rights. The jury was in a position to determine whether to believe Mr. Mitchell or Ms. Lacks about the warning. Yet, from the distance of the appeals court, Judge Arnold concluded that Ms. Lacks had enough warning. With First Amendment rights at stake and the facts in dispute, an appellate judge shouldn't be second-guessing the jury's determination of who is telling the truth. In effect, that's what Judge Arnold did.

Unfortunately, the appeals court decision is going to be difficult to overturn. Judge Arnold is well-respected and one of the more moderate judges on the 8th Circuit. In addition, the Supreme Court hasn't been very protective of student expression in recent years. Part of Judge Arnold's opinion rests on the high court decision permitting Hazelwood East High School to censor its school newspaper.

Judge Arnold said that public education instills the "shared values of a civilized social order" and that a school should "reflect the norms and standards of the community it serves."

That is a sensible idea, but it is also limiting. Anyone can grant a person intellectual freedom to conform. The true measure of freedom is how well we protect nonconformists like Cissy Lacks.