Past Imperfect

by Jeannette Batz

In her lawsuit against the Ferguson-Florissant School District, Cissy Lacks’ defense hones in on conflicting testimony versions of stories, memories stories.

The memory of Vernon Mitchell, principal of Berkeley High School, was long and sharp when he set out to investigate videotapes made in Cissy Lacks' class four months earlier. But that same memory grew fuzzy during the federal trial of Lacks' lawsuit, which alleges violation of First Amendment rights and racially based discrimination.

The Ferguson-Florissant School Board fired Lacks after Mitchell found a videotaped exercise from her English class. Students had written and performed scripts about drugs, gangs and similar topics, using street language freely. Lacks had deliberately refrained from censoring their creative writing, preferring a method that begins with self-expression and trust, and builds until students develop their own critical faculties, realizing that excessive empty language carries no real power. The videotapes were not finished products the students intended to be shown outside the class. But adult educational politics, social tension and ideological conflict made the decision for them.

In federal court last week, Lacks' lawyer, Lisa Van Amburg, asked Mitchell about the two students whose complaint started the videotape furor - hadn't they just been denied permission to drop Lacks' newspaper class? "I'm not sure what the counselor told them," Mitchell replied.

Van Amburg pulled his sworn testimony at the public hearing and read aloud, "The counselor told them no.”

"I think to the best of my knowledge at the time, the answer was no," he said, finishing, "I don't know if she told them no. I'm sure she did."

Mitchell had also testified at the hearing that the first issue of the BerkeleyBulldog Express had profanity in it; he said he'd spoken to Lacks about the language. "You also told the board that the F-word was in that newspaper, didn't you?" Van Amburg asked blandly.

"Yes."

"What word were you referring to?"

"Fuck," he answered grimly. "Is that what you want me to say?"

During the public hearing, Mitchell had simply told the board he didn't have that issue of the newspaper with him. In court last week, Van Amburg handed it to him and asked him to find the places where the words "fuck" and "shit" appeared. For perhaps the first time in the trial, there was a real edge of anger in her voice. She put the stack of papers down on the table with a thwack and waited while Mitchell spent several minutes looking through the paper. Finally, prodded, he admitted the words weren't there. Van Amburg reminded him that he had also testified under oath that he approved every other issue of the newspaper in advance. "Isn't that true?"

"No, it's not," he replied. After a brief volley, airy as badminton, she read his testimony to remind him. "Was that true when you testified?"

"Yes."

Pointing out that Mitchell had never put a single warning or criticism of Lacks in writing, Van Amburg produced copies of letters he'd written to other teachers. One asked a teacher to refrain from using the office phone and use a different one instead; another observed that some students had put their heads down during a film; another reprimanded a teacher for comments about the district (copies of that one zoomed up to the assistant superintendents). There was a reminder not to leave messages with a babysitter; a memo that a security guard had arrived at 8:15 a.m.; a letter to the file of a teacher who'd been 12 minutes late for a school program. But there was nothing written to Cissy Lacks about profanity, or teaching method, or educational value.

The next awkward moment came when Van Amburg raised the subject of a Berkeley High student play directed by an African-American teacher. "You had seen such a play?" she asked Mitchell.

"Yes."

"But you told the board you had not."

"Yes."

Van Amburg showed the court excerpts from a videotape of the play. Mitchell admitted hearing the words, "I'll blow your damn head off," "Mama, damn, leave me the hell alone!" and "Jew shoe." But he said he did not hear the line, "You're trying to fuckin' kill me, my brother."

"You did hear it at the time, didn't you?" Van Amburg inquired.

"If I was in the auditorium, yes."

"That man in the white shirt is you, isn't it?" (As Van Amburg pointed to the videotape, the camera panned the audience.)

"Yes."

"Mr. Mitchell, did you hear him say, tried to keep her back but she was pullin' on my thing?'" After an anatomical discussion, Van Amburg fired more questions, stopping and starting the tape. "Did you see him pulling at his crotch?... You told the board you objected to a crotch-pulling scene in Ms. Lacks' tape, didn't you?" She played yet another crotch-pulling scene from the play. Mitchell made her replay it twice and still maintained he couldn't see the gesture.

Watching another excerpt, this one accompanied by a roller-coaster of whoops, screams and laughter from the audience, Mitchell disagreed that one of the dances simulated sexual intercourse: "Yes, I saw the arm movement, but I don't think he was "touching" her leg or anything."

Van Amburg pointed out that the gesture went "all the way down her legs. Do you think that's an appropriate way to dance?" Objection, sustained. She moved to another scene, reminding Mitchell he had objected to the tapes from Lacks' class as disrespectful of women. Had he seen the boy throw the girl across the stage in this play? "I didn't see it as disrespecting; he told the girl to get out of "@)$" the way," he responded. "It wasn't appropriate, pushing her to the side, but I think the play was about kids making choices."

Mitchell confirmed that he had not initiated any investigations, made any reports or called any parents after this play was performed. After "Senior Square", another play directed by the same teacher, he did take action. Students had written, in a reference to "the ugly teacher on the third floor with big breasts." Mortified, the teacher so described requested a transfer. Mitchell wrote assuring her appropriate action had been taken (he had ordered the videotapes of the play withheld) and wishing her good luck at her new school.

Van Amburg asked Mitchell to read aloud the letter of reprimand he sent to the African-American teacher who directed "Senior Square". "I appreciate having the opportunity to work with you this year on a professional level," he began. "Your first year of teaching at Berkeley High School was a success." Praising the teacher for creating "new interest and enthusiasm" in the students, he said it was unfortunate that the success of "Senior Square" had been tarnished by the inappropriate remark.

Lacks got a letter, too -- a letter of termination. The tapes from her class were not destroyed; they were shown to the community two nights before her public hearing, with no explanation of the assignment given.

Former district superintendent Robert Fritz, now retired, testified that in his opinion, the key issue for the investigation had been whether Lacks' assignment had any educational value. He had suggested having the videotapes reviewed by two other professionals, but admitted that he did not see their reports until after he signed the termination letter. Van Amburg asked if he'd been distracted by the tragic murder of a student from the district. But he claimed he had not given Lacks' case any less attention because of the murder, which took place three days before formal charges against Lacks were written.

With equal assurance, board president Leslie Hogshead testified that she did not think Mitchell's comment about white folks videotaping black students acting the fool was a racial comment. Van Amburg asked why she had so deliberately, in an official press release, referred to the videotapes "a violation of our black community, a violation of our white community." She said she didn't remember, but insisted that race was not an issue.

The school district's defense began last Thursday; we were unable to cover it because Frank Susman, attorney for the district, had subpoenaed this reporter's notes and testimony, asking about an interview with Lacks a few weeks after she was terminated. On the stand Friday afternoon, the trial's usual pattern held: Susman asked only what words Lacks had used, while Van Amburg sought their meaning, context, intent and consequences.

At press time Monday, the trial was drawing to a close; it would soon be the jury's turn to decide what was profane, what was racist and what was real education.