Appeals court affirms firing of teacher who failed to censor student writing

By David Hudson
First Amendment Center  06.24.98


A school district did not violate the First Amendment when it fired a national award-winning high school teacher for failing to censor her students' creative expressions, a federal appeals court has ruled.

The U.S. Court of Appeals for the 8th Circuit on Monday reversed a $750,000 federal jury verdict rendered in favor of Cecilia Lacks, who taught English at Berkeley Senior High School in St. Louis, Mo.

The controversy arose after the school board fired Lacks in March 1995 for allegedly violating a school district "no-profanity" policy when she allowed students in her junior English class to use profanity in their creative writing assignments.

She sued in federal court, claiming a violation of her First Amendment free-speech and other constitutional rights. As a result of the school board's action, Lacks received a First Amendment award from PEN (Poets, Playwrights, Essayists, Editors and Novelists) and was named "Person of the Week" in April 1996 by ABC.

A federal district court refused to dismiss her lawsuit in 1996, ruling: "It may be the board's desire to draw lines with respect to student profanity, and the Court agrees that the board has the authority to establish and interpret its own policies. However, the board never drew these lines in board policy … until it chose to terminate [Lacks] for violating the policy."

The district court also wrote 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."

Lacks v. Ferguson Reorganized School District was heard by a jury in November 1996. The jury awarded Lacks $500,000 on her First Amendment claim and an additional $250,000 on a racial discrimination claim. Lacks is white, while the school principal and assistant superintendent for personnel are black.

However, the appeals court reversed the jury verdict, ruling that the lower court should have deferred to the school board's finding that Lacks should be terminated for failing to abide by the "no-profanity" rule. According to the appeals court, "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."

The 8th Circuit acknowledged that Lacks "did produce some evidence that confusion existed in the school district as to the profanity policy" and that "isolated instances of profanity had been overlooked or tolerated in the past," but the court wrote: "what went on in Lacks' classroom went far beyond the reading aloud of a novel containing the word 'damn.'"

The appeals court concluded that the board had a legitimate educational interest in prohibiting profanity in students' creative writing and wrote "we consider the matter too plain for argument."

Anti-censorship experts deplored the decision. Joan Bertin, executive director of the National Coalition Against Censorship, said: "This is a dreadful decision. The idea that a teacher could not reasonably believe there was a difference between cursing in the hall and profanity in a student creative writing piece is incredible.

"The fact that the court of appeals would override a set of jury instructions in this case is astonishing," Bertin said. "The decision signifies a real loss of academic freedom. The court has unfortunately held that socializing students to mainstream public behavior is more important than thinking creatively and writing about their surroundings. The appeals court sadly failed to recognize that in this case a good teacher took street language and turned it into part of a constructive learning process."

David Greene of the National Campaign for Freedom of Expression said: "This was a horrible decision. The court of appeals overturned factual findings made by a jury and characterized them as findings of law only so that it could reach a different conclusion. The appeals court ignored the fact that sometimes there can be legitimate creative use of profanity."

Efforts to reach Lacks' attorneys to determine if the decision will be appealed were unsuccessful.

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