Getting Fired for Good Teaching
© by Cissy Lacks
I almost didn’t check my answering machine that night. It was 10PM, when I got home from dinner and the movies, late for a teacher who had to be up at 6AM and in her classroom ready to go by 7:10. I pushed the play button more out of habit than curiosity.
Hello Cissy. This is Mr. Mitchell, and the time now is 7:53. I would like to talk with you regarding the tape that was done about two or three weeks ago involving your class, and I have viewed it. I intended to talk with you earlier with regard to who has the tape. It’s pretty shocking and I would like for you to meet me at the administration building tomorrow morning at 8:30. There is no need for you to report to the school, I have them covered. You need to report to the administration building at 8:30 a.m. Thank you.
I thought about the message on my machine. The tape was pretty shocking. I didn’t know what he was talking about, even after I thought about it and thought about it, all night, almost every minute of all night.
The tape, it turned out, was one my students had worked on three months before. At that 8:30 meeting, I was suspended – a decision they had been made before I arrived. Two months after that phone message, I was fired.
For the 25 years I taught creative writing, I followed the practice of providing my students the opportunity for freedom of expression. When people are serious about communicating what they or their characters are thinking, they need to choose the words without someone else telling them what words to choose. This teaching method– allowing students their voices and then teaching them how to be most effective with their voices– is practiced in classrooms all over the United States. In my case, I had no directives to teach otherwise and, in fact, had been acknowledged as a successful and talented creative writing teacher using the very same methods for which I was fired. I had many complimentary letters and awards in my file, and not a single complaint in all the years I had been in the District. The issue, as I saw it, was not really about words. It was about whether I or any teacher should censor students’ creative thoughts and expressions and about whether I or any teacher could be fired without notice because someone took offense at what was produced in a classroom assignment – even though numerous classes over several years had gone through the same process and method without complaint.
In a meeting with the three administrators initiating the termination charges against me, I offered an example to illustrate the power and potential of words for students' intellectual growth. I had a student at Berkeley High School who walked into my class everyday, went to the back of the room and put his head on a desk. He was disconnected from me, from school, from learning and probably from himself. But inside him was a poet that even he didn’t know about, and when we started writing poetry in class, he couldn’t resist joining in. The first two exercises he read aloud came out like an unaimed shot gun exploding with street language, gang slang and anger. Less than three weeks later he wrote a poem that won a District award and had me and his fellow students in tears:
Alone by Reginald McNeary
I'm all alone in the world today.
No one to laugh with no one to play.
It's been like that since the age of three.
No one to love, care or hold me.
I guess that's why I'm the way I am.
No one loved me so I don't give a damn.
No one to pick me up when I fall.
No one to measure growth or how tall.
Alone how it hurts inside.
If I were to die, no one would cry.
I never gave a damn about any other.
I love my shoes
More than I love my mother.
You might think I'm the Devil or call me Satan.
I have no love I'm so full of haten.
I guess that's why I have low self esteem.
The only time I show love
Is in my dreams.
After I was suspended, I brought Reginald’s work to the administrators when I met with them to explain the creative writing process and why it was so important not to stop students through censorship. Two days later, my attorney told me that these administrators had added a charge of profanity in poetry and had submitted as evidence the first two poems. They had ignored and discarded Reginald’s final poem that had been published and had won awards. They didn’t remember having seen it, they said. They totally ignored the process of teaching and they totally ignored the results of the process. Why would people supposedly committed to education and to justice do such a thing to me or anyone else?
Perhaps the answer lies in the response one of the school board members made to one of my students after she testified at the dismissal hearing. My student said that profanity was part of her life and the characters she wrote into the scripts came from people in her life. She appreciated the opportunity to write about life as she saw it and she talked about some things she learned from the experience and why it was helpful that she was not censored.
When my student was through, a school board member asked her, (and I quote directly from the transcript) "If things could be different for you, would you like them to be?...What I was getting at, if you are in a situation where you don't want to be, like you were saying black, African community, that's the way it is, is profanity, where do we begin to change that...?
My student looked her straight in the eye and said, "I like the way my life is now" and added later, "My mother raised me right. If you don't disrespect me, I won't disrespect you."
Reginald’s first two poems and the drama exercises my students taped were the evidence submitted by the Ferguson-Florissant District at my dismissal hearing. The drama exercises were first attempts by students who took themselves seriously and produced nothing provocative even though the students did use street language, and sometimes lots of it, in the dialogues for the characters they created.
That the concerns of the principal were more about race than about words was reflected in a comment he made to one student about the drama exercises:
And when I looked at that tape, I see black students acting a fool, okay? And I see white folks videotaping it, okay? Did you think about that...?
The students’ writing of dialogue was part of a drama unit which included analyzing dialogue in films and plays. Students wrote their scripts after watching a television interview of a Pulitzer prize winning playwright give advice on writing – write about things important to you and write from authentic voices you hear in your lives. I told them, "If you want to see yourself on tape, if you want to see how you project yourself, we can tape these productions. But I want to tell you that I know it takes some guts to look at yourself and critique yourself and the only people who will look at the tape are the students in the two classes.”
We had nothing to hide. People, including parents and administrators have sat in on works in process, with the students' knowledge and agreement. And I encouraged students to perform work, when they and I felt it was ready. In this instance my school district showed in public those tapes that I promised my students would not be shown outside the class. They did not ask permission of students, parents, or me. Those tapes were also broadcast on national television. My situation was about respect for teachers and for students, but it was also about important educational issues such as rights to privacy and safe, time-out places in classrooms and trust between students and teachers.
Most people were stunned when I explained that I was fired for disobeying an appendix to the student discipline code, that appendix being the only place in any school board regulation mentioning profanity. Some examples of student behavior that would be in violation of this type of regulation are tardiness, unexcused absence, leaving school grounds without permission, ...littering, profanity, insubordination, inappropriate dress, and lying to school authorities. Punishment might be nothing more than a talking to, or in the most severe instances, at most a 10 day suspension. Several school employees testified that no teacher would expect that this appendix to the student discipline code would or should apply to instructional activities, nor that an appendix to a student discipline code could be construed in any way as the basis for disciplining a teacher.
People were even more astonished when they read the curriculum directives for teaching writing in the Ferguson-Florissant School District and realized that I followed them explicitly.
Ferguson-Florissant Writers Project
Revision/Editing
Content Conference Guidelines for Teachers
1. Keep conferences short, use a quick minute or two.
2. See as many writers as possible.
3. Go to your students, so that you can control the length of the conference and see many writers.
4. Make eye contact with the writer.
5. Don’t tell writers what should be in their writing or, worse, write on their pieces.
6. Build on what writers know and have done, rather than bemoaning what’s not on the page or what’s wrong with what is there.
7. Resist making judgments about the writing.
8. In questioning students, ask about something you’re curious about as an inquisitive human being.
I have had to figure out how I could make sense of such a crazy misinterpretation of a District policy. Did some group of lawyers get together and make a sick joke of what teachers and school board members had negotiated in good faith over hours and years of conversation. But then why did board members go along with it? Some people speculate that this group really wanted to get me. That conclusion might be true, but I have come to another sad conclusion as well. When a teacher goes into a classroom, she or he is supposed to do what's best for the students. That pact is not usually in school board policy but it is in the hearts and minds of most teachers.
Unfortunately, I don't think it was first and foremost in the hearts and minds of administrators and school board members in the Ferguson Florissant School district. I have come to realize that these people didn't know, didn't care to know, and didn't care to learn what goes on in a classroom and why. And in many ways it's not useful to speculate about motive because the point is what happened to me could happen in any school district. The conditions seem to be ripe for this kind of abuse of civil rights. The aftermath is the fear that teachers have and the harm those fears create in students' education.
I chose to have a public hearing and then a public trial when I sued the Ferguson-Florissant School District. It was hard to expose myself to public scrutiny, but I realized that examination was the only way my district’s administrators and school board would be made accountable for their behavior. I couldn't believe the intimidation and bullying that went on during my meetings with these administrators--and I had worked with these people for over 20 years. Among a list that could go on for pages, I was suspended the morning I was called in with the directions to “Go home and do nothing.” They didn’t even tell me what tapes they were talking about, and I didn’t know. When I did find out, they refused to let me see my classes’ drama tapes upon which they were basing their actions, even though they had been done three months before. They tape-recorded interviews of some of the students in those classes, refusing to let us attend the interviews, and then submitted inaccurate summaries to help their case, denying that actual tapes existed until they were forced to submit them in response to my attorney’s legal request. They confiscated my grade book, after searching my classroom and locked classroom closet without my knowledge, and made suggestions that the way I kept attendance was against state regulation. They let me know that they were looking for anything they could use against me. They asked educators in the District to watch the drama tapes and write observations about what they saw. When the administrators didn’t like what the teachers wrote, they had them rewrite the observations – one person having to do so three times. They distorted material I brought to them, such as Reginald’s poems. They brought up the vulnerability of my state teaching certification, preparing me for what I later learned was a common practice by administrators – offering to take my resignation in place of any further proceedings that “would hurt my career.” They had no interest in my 25 year exemplary career, but the only way their behavior and their abuse of power would be acceptable was if other people didn't know what they were doing. First they intimidated, and then they offered the alternative of resignation. When my case was made public and everyone was under scrutiny, the media subjected the Ferguson Florissant School District's administrators and school board to public criticism and even ridicule.
We began the school board hearing knowing the odds we faced. The lawyer who represented the administrators and argued their case was also the lawyer for the school board. If a school board ignored the dismissal recommendation of their administrators and supported the teacher, they would undermine the leaders of their district to say nothing of the lack of faith they would show in their own legal counsel.
Still, we prepared for the hearing with the belief that the good of students, the telling of the truth, the integrity of the classroom and everyone’s commitment to public education were most important to a school board. If abuses had taken place, the school board would do something to remedy the situation. My attorney began the hearing by saying, "...My name is Lisa Van Amburg, and I represent Dr. Cissy Lacks, a 25-year veteran teacher of this district. We will prove to you tonight that these charges have absolutely no merit whatsoever. Rather, they are part of a reckless, deliberate and malicious scheme by several administrators in this District to fire a master teacher, whose teaching methods have been proven to work...we will prove to you that the actions taken by Dr. John Wright and Mr. Vernon Mitchell, with the assistance of Ms. Barbara Davis, were taken in utter disregard, not only of this teacher's rights, but of the rights of her students to learn."
They called one witness – the assistant superintendent of personnel who said he couldn’t interpret curriculum directives and that we’d have to ask the assistant superintendent of curriculum. They showed the tapes of my drama students – with the TV screen facing the audience of over 400 and numerous TV cameras from local stations, not the school board. And they submitted Reginald’s first poems.
We tried to show how the process of learning takes place in a classroom. We brought in respected educators both from the District and the St. Louis community to testify. Students involved in the writing of the drama exercises testified, as did my students from years past. Parents came forward and even other administrators from the District testified that they had never heard of or thought that the student discipline code could be used in the way it was in my case. I testified, using my time to illustrate the teaching techniques I had used successfully for 25 years.
Perhaps we should have known better than to even try. That same legal counsel who represented the administrators wrote the findings which the school board president later signed in my official dismissal. Later, one school board member, in deposition and under oath, testified that the school board had never discussed the student discipline code as it applied to my case and had discussed only one or two of the 23 findings listed in my dismissal, It was understood without saying that the others had been the creation of the lawyer to make their and his legal case.
Another Board member said in the deposition getting ready for trial, “And I’m the only one who made my vote public. I voted to terminate her.” She repeated that expression so often during her deposition that when she said Terminate her , I heard it like a chant–Terminate her...Terminate her...Terminate her...Terminator, and I began to wonder if she was afraid of me because she thought I had the power of Arnold Swartzenagger, which I could have assured her I did not. She did say she was sure I thought I had done nothing wrong and she was afraid that if I returned to the District, I would teach as I had taught before.
As it happened, getting fired brought me more than five minutes of fame. Instead of lighting up like a sparkler and then fizzling out, my story grew, slowly and seriously, from the midwest to the rest of the nation. Education Week , the newspaper for educators, published a story and the writer called it, Expletive Deleted. She said she chose the title, not because of the language in the student dramas, but because she had come to realize in her investigation that these Ferguson Florissant administrators and Board Members viewed me as the “expletive deleted.”
Her article was reprinted for the cover story of Teacher , a national magazine, and even I had a hard time admitting it was me on the tabloid size, 4-color, glossy cover, a picture of me with my hands reaching out as if I wanted to grab the readers and pull them into my story. The dramatic effect of that cover was, “This teacher has a story to tell,” at least that’s what the Dateline NBC producer said when he called to say Dateline was interested in doing a segment on me.
In our phone conversation, he said, “We’re going to look at all sides,” he said, “But this story is going to be about teaching.” When so many others wanted to talk about profanity, he wanted to talk about teaching. I did the story.
The ups and downs of my life were at the full ends of the spectrum. Before my suit against the District was heard, I won the prestigious PEN award for one person who had defended the First Amendment at some risk to herself.
Actor Paul Newman introduced me at the ceremony and began, “The battle to safeguard freedom of speech has its casualties in this country too,” but the image of him presenting the award to me was more effective than any words could have been.
I took deep breaths while he was talking. Then I heard him say my name, and I was at the podium. I closed with words I hadn’t planned – words that came from the events of the last few days – from being on television as ABC’s Person of the Week, from being on stage at Lincoln Center, and from listening to Paul Newman talk about me.
.... I understand the awesome responsibilities that go with this award. I understand my obligations to speak about teaching and about writing, and I welcome the opportunities that have been and will be given to me. I thank you for taking this public position in my support, and I want you to know that I will not let you or myself down.
I learned later how hard it was going to be to keep that pledge I made.
Before the jury trial, the Federal District Judge, Catherine Perry, ruled on Count One of my case, reversing the Board’s dismissal and ordering my reinstatement. Among other things, she wrote:
The record as a whole clearly indicates that there was in practice an unwritten exception in the district for profanity in class-related activities. 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....Defendant submitted no evidence indicating that the district in fact enforced policy 3043 to prohibit students from reading aloud or otherwise using profanity in creative works.
The District refused her reinstatement order. Only an injunction and a long appeal battle would get me back in the classroom, and then the trial would be postponed until this Count went through the Court procedures. We decided to agree that I wouldn’t return until all the Counts had gone through the legal process. I didn’t see that we had any choice. A teacher, I had learned, has little clout outside of her classroom and now I had to face, not too much clout inside either.
In the courtroom, my attorney put the legal issues in lay terms before the jury:
You're here to decide a case about how a teacher of high school English in a troubled school where many kids are not interested in education, how she motivates the kids to write, how she turns them on to the value of poetry, how she gets them to engage in poetry contests, short story writing contests, work on a high school newspaper and sign up for Journalism class. We're asking you to decide whether the District can summarily terminate a teacher who uses a time-honored teaching technique called the student centered learning technique which is the technique recommended by the Ferguson-Florissant School District, and we're also asking you to decide whether the illegally, racially motivated fears of two administrators Vernon Wright and John Mitchell was a consideration in the firing of Cissy Lacks.
The witnesses who had been at the hearing testified again, but at the jury trial another witness wanted to testify; that witness was Reginald McNeary.
He told the jurors:
.. I was not going to try, and Ms. Lacks explained to us that writing was just what's inside of you, what you feel, and what's on your mind, and anybody could write that. I mean, it's really hard to write what somebody else wants you to write, because you have to have their standards, and you have, it's like they might not like it, ...but it was brought to us in a way we could understand it, and I picked up from that.
My attorney asked him if the first poems he wrote reflected anything inside of him at the time.
I guess hatred and anger. I really don't like to talk about those first poems. They are embarrassing.
He continued to tell the jury about how he became a poet.
It was like I woke up, or whatever, because I never knew that I had the potential or ability that I had, and so now, it was like easy...write what you feel and what's on your mind, so I was writing, I was writing like, I would say, within a month, I had about eight poems, I was writing songs, and I started a book, a book....when this month was over, it was like this is powerful.
He told the jurors what would have happened if I had censored those first poems.
I probably wouldn't have wrote again. I probably would have told her something....I mean, it's just like, to come out of, I don't think you understand where I was at, and I was not really participating, so to write anything, if I was just to write my name would be like a big or valiant effort, and if I was to come out of my shadow and write something and somebody was to criticize me, I would be mad. It would hurt my feelings, too. I probably wouldn't have came to the class again.
Reginald and the other students who testified on my behalf made me so proud to be a teacher. After three and a half years of waiting and preparing, two weeks of trial and seven hours of jury deliberation, we had a verdict.
On First Amendment claim, number one, did plaintiff have reasonable notice that allowing students to use profanity in their creative writing was prohibited?
No.
I looked at the jurors. Each one of them was looking directly at me. For the first time in all those years since I had been fired, my body relaxed
Number two, did defendant School District have a legitimate academic interest in prohibiting profanity by students in their creative writing, regardless of any other competing interest?
No.
Then the Judge announced the verdict on the race discrimination claim.
On the claim of plaintiff Cecilia Lacks against defendant Ferguson Reorganized School District R-2 for race discrimination, we find in favor of plaintiff Cecilia Lacks.
Has it been proven by a preponderance of the evidence that defendant would have discharged plaintiff regardless of her race?
Answer: No.
I bent my head into my hands and then raised it to look at the jury again. I wanted to talk to them, to thank them but the Judge said to them,
I need to warn you about what may be obvious. You may be contacted by the news media and asked about this case...and you are free to handle any such requests any way you want...I wouldn't be surprised if you walk out of the building and there will be people there...”
All the jurors left together, escorted by the guard. I thought I’d get to thank the jurors. I had wanted too so much. We opened the door to the court house entrance and below us were a row of camera lights shining up the courthouse stairs. It was dark and a little cold. The lights reflected off the night air, illuminating vapor clouds in front of us and blurring the reporters at the bottom of the stairs. For a second, I remembered the day I was fired and then I announced, “We won. Teachers and students won.”
I should have realized how naive I was. I believed then what my attorneys told me about the legal system: “Juries decide fact. Judges decide law.” Along with that proposition, almost everyone in the legal field said that my case couldn’t be overturned. The facts were too strong; the jury verdicts were too firm.
As we expected, the District appealed the decision. I could never have predicted what happened during oral argument in the 8th Circuit Court of Appeals, but I predicted what was going to happen afterwards.
I got concerned almost immediately when Richard Arnold, who was chief presiding Judge of the 8th Circuit, asked my attorney why Mitchell’s statement about being bothered by “blackfolks acting a fool and whitefolks videotaping it,” was part of our race claim. At first, I thought it was a joke, but I soon found out that it wasn’t.
Then he began to ask questions as if the findings from the school board were true, even though we had disproved them at trial and I was told he had to take the facts of the jury trial in my favor as the true ones. When my attorney protested, Richard Arnold asked him if he was now telling school boards whom they’re supposed to believe and not believe. It was as if the jury trial never took place.
Another judge inquired of my attorney, “A teacher as intellignet as Dr. Lacks, must it be assumed that she has to be led by the hand?”
Although the question didn’t seem to have any relevance to appeal procedures and certainly had been covered during the trial, still, I was wishing for my attorney to defend me, to answer the question: Tell him that I knew exactly was doing, that I’m a master teacher who has great success with her students and keeps up on the research for the teaching of language arts. Tell him that the jury heard the record and made the decision about whether I knew what I was doing or not. But my appeal attorney, no longer the one I had at my jury trial, interpreted the question as rhetorical and did not respond.
My attorney fell into the trap set by the judges of defending the facts in the case. In doing so, he tried to bring up my expert witnesses. Richard Arnold interrupted him and said not to talk to him about expert witnesses, that a few weeks ago, in another case, one of them had said students should use rap to learn how to write and it would never happen as far as he was concerned.
I didn’t understand at all what was taking place. I had been told these judges couldn’t retry the case; they could only respond to legal issues arising from Judge Perry’s rulings. Clearly, they had other things on their mind. I left the courtroom discouraged and disheartened. My attorney said I was over-reacting. I knew that I wasn’t. These men didn’t have any idea of how to teach, how to reach students, what was going on in the real world of schools and yet they were ready to make judgments based upon their attitudes about learning and culture, not about their responsibilities to interpret law. I was in deep trouble; teachers were in deep trouble. These men were going to do great harm to students because they decided they knew so much more than all of us that they didn’t have to listen to us or to the jury or pay any attention to the record.
Even though I knew the case was in trouble, their written opinion five months later was a sickening shock. They overturned every single jury verdict and Judge Perry’s reinstatement. They began by saying:
We reverse and remand for the entry of judgment in favor of the defendant school district. We hold, among other things, 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.
It was all about profanity and nothing else. Reinstatement was gone. Fair warning was gone. Legitimate academic purpose was gone. Title VII, race discrimination, was gone. I wondered where it all went. Where did they put it? For the sake of ruling on profanity, three judges dismissed the law.
Then they proceeded to overturn the factual decisions of the case regarding fair warning:
After a careful review of the evidence, we hold that the record contains sufficient evidence for the school board to have concluded that Lacks willfully violated board policy.
They dismissed the first amendment claim as easily:
....We reverse and hold, as a matter of law, that the answer to both of those questions was “yes.”
The race claim was the same:
We reverse and hold as a matter of law that race was not a motivating factor in the school board’s decision to terminate Lacks...The idea that the board “had race on its mind” when it fired Lacks ...is questionable, especially given that the president of the school board, who signed the statement, testified that she did not believe that Lacks’s case involved racial issues.
Now, school board members decided not only the credibility of the witnesses at the hearing, but they decided the credibility of their own testimony at the trial.
As far as I could tell, Richard Arnold, who had written the opinion, did so as if the trial never took place, as if the jurors hadn’t heard witness testimony, as if evidence hadn’t been submitted to them. I remembered the fear I had when my first attorney told me that the administrators and their lawyer had thrown away Reginald’s last three poems and submitted into evidence only the first two crude ones. That same, sick panic returned.
We asked for the entire 8th Circuit to reconsider the case. They refused. One of the judges, Justice Theodore McMillian, wrote an opinion in dissent, requesting them to reconsider:
The outcome of this appeal does not affect only the parties to this action. It affects all innovative and well-meaning teachers like Lacks and students in need like Reginald. When good educators are scared away or driven from our schools because they cannot trust the system to treat them honestly and fairly, we are all affected, most especially our children.
We asked for my case to be heard before the Supreme Court. Fifteen national education organizations signed an amici brief on behalf of my case and on behalf of public education. In it, they said:
... (this) case presents the issue of whether it is constitutionally permissible to make a teacher a scapegoat or fire her for using a particular teaching technique that she had used for years, without first putting her on notice that use of that method is no longer permitted....the decision (of the 8th Circuit) promises to create serious confusion and even alarm and dismay among educators around the country, who must guard now what they say and teach This Court should review the obviously flawed decision of the Eighth Circuit because it raises issues of great import to the governance of the public education system, and because of the need for greater uniformity and predicatability in the implementation of important constitutional issues.
My case was not taken. The Appeal decision was the final one.
When I spoke to teachers beginning their career, I told them that I wished them the same joy, frustration, and pleasure in being with students that I had. I wished them the same long-term relationships I had with many of my students. I wished them the opportunity to have dialogues with students that allow them to establish a classroom space was sacred, one in which respect, trust and joy permeated the learning activities. I wished them the opportunity to see their students become productive adults.
Also, I told them that for every lesson planned, for every assignment made, I didn’t want any person to teach in fear of losing a job. I didn’t want any classroom teacher or any class of students to fall prey to such a chilling effect on learning. I told them my message to my attorney was that the legacy you create for me and for all teachers must be the right one. I didn’t want my name to be associated with the case that struck fear in the hearts and minds of every teacher. And certainly, I didn’t want self-censorship to take place because teachers were afraid. I wanted a strong statement to be made for academic freedom and teachers’ rights to teach because those practices were critical for good education.
What I wanted did not happen. I am still trying to make sense of the experience and how telling the story might help students and teachers. I remember and still plan to keep the pledge I made at the PEN ceremony, that I understand my obligations to speak about teaching and about writing, and I welcome the opportunities that have been and will be given to me. Some scary and dangerous circumstances created the atmosphere for my firing, and situations like mine are appearing in schools all across the country. I keep with me Justice McMillian’s thoughts:When good educators are scared away or driven from our schools because they cannot trust the system to treat them honestly and fairly, we are all affected, most especially our children.
This attack on teachers and on education needs to draw the attention an epidemic requires. Teachers afraid to teach produce students afraid to learn and a society in turmoil because its citizens are afraid and unable to deal honestly and effectively with the realities confronting them.
(from Protecting the Right to Teach and Learn: Power, Politics, and Public Schools
Teachers College Press Edited by: Daly, Schall and Skeele