Teacher Will Appeal 8th Circuit Decision

Teacher fired for allowing profanity says she will appeal

By David Hudson

First Amendment Center 06.30.98

Cecilia Lacks, a former St. Louis public high school teacher fired for failing to censor her students' work, says she will appeal a recent decision by a three-judge panel of the 8th Circuit Court of Appeals.

The panel reversed a $750,000 jury verdict based on her First Amendment and race discrimination claims.

"This decision is frightening to me, and I'm sure to many other teachers," Lacks said. "I am devastated that the appellate judges reversed the factual findings of the jury who heard all the evidence."

Lacks, who taught English and journalism classes at Berkeley High School, sued the school district after she was fired for allegedly violating a school no-profanity rule by failing to censor student plays, some of which contained much profanity.

A federal district court refused to dismiss her lawsuit in 1996, saying that "the evidence presented to the board was overwhelming that many administrators and teachers in the district allowed class-related profanity depending on the context and degree of profanity."

Later that year a federal jury awarded Lacks $500,000 on her First Amendment claim and an additional $250,000 on her race discrimination claim. Lacks is white, while several of the school officials, including the school superintendent and principal, are black.

However, the 8th Circuit in Lacks v. Ferguson Reorganized School District R-2 reversed the jury's decision, ruling that "a school district does not violate the First Amendment when it disciplines a teacher for allowing students to use profanity repetitiously and egregiously in their written work."

Lacks, who has won national teaching awards, says the appeals court seemed to ignore the findings of the jury and instead substitute the findings of the board. "I am very frustrated by the appeals court decision. I did not think it was the task of the appellate judges to retry the case," Lacks said.

"This decision basically means that teachers have no rights, I mean zilch. This case raises serious First Amendment issues and imposes a very real chilling effect on public school teachers everywhere," she said.

"I never said that a teacher could teach whatever she or he wanted. However, a teacher should be not fired without receiving a warning as to what speech is prohibited. I followed policy and taught as I have for 25 years and did not receive fair warning."

However, the appeals court wrote in its opinion that "[w]hile Lacks did produce some evidence that confusion existed in the school district as to the profanity policy, and while she denied that she had been warned about it, we must read the record in the light most favorable to the school board's decision, together with all reasonable inferences. … We are satisfied that Lacks was provided with sufficient notice by the school board that profanity was not to be allowed in her classroom, whether in the context of creative expression or not."

The appeals court criticized the repeated use of profanity in Lacks' classroom and said that the purpose of public school education is to promote a civility of values.

Lacks, however, sees the appeals court decision as uncivil: "In my sense of what is civil, the civil way a society operates in a democratic society is ensuring open, public discourse with people of different voices speaking of their different experiences in their own individual ways. If we stifle that kind of discourse, we will begin to disenfranchise people. And if we start to disenfranchise people, we will begin to promote civil unrest."

Lacks says that her attorneys are planning this week to ask the three-judge panel to reconsider its decision; they will also ask for a hearing by the full appeals court panel.

Frank Susman, attorney for the school district, said: "While I recognize the plaintiff has two avenues left in her case—a full panel review by the 8th Circuit or a petition for certiorari to the U.S. Supreme Court—I think her chances of obtaining review before either one of those bodies is extremely remote. The 8th Circuit's decision was right on the mark. Cecilia Lacks is not a martyr for free speech and her case is not as horrendous to the teaching profession as she would have people believe."

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