Civil Disservice


By Jeannette Batz, The Riverfront Times


In the interest of "civility," the 8th U.S. Circuit Court of Appeals overturns a decision favoring teacher Cissy Lacks and curtails self-expression by students


When Berkeley High School teacher Cissy Lacks sued the Ferguson-Florissant School District for unjust dismissal, violation of freedom of speech and race discrimination, her whole point was that by judging without understanding, you kill any chance for educational progress. Yes, her students had used profanity in their creative-writing assignment. No, she wouldn't let them talk that way in conversations with her or with each other. But she refused to censor early attempts at self-expression; refinement could come later, when students scared of writing had learned its power.

They've learned it all too well. In 1996, after an abrupt firing and a "kangaroo-ish" school-board hearing, Lacks sued. After a federal hearing and a trial heavy with testimony, a district-court judge agreed that Lacks had been fired without substantial evidence, and a jury awarded her $500,000 for violation of First Amendment rights and $250,000 for race discrimination.

The notoriously conservative U.S. Court of Appeals for the 8th Circuit has just reversed those findings. Ironically, their decision proves Lacks' originalpremise: By emphasizing "civility" over the necessary patience and freedom of the educational process, the judgment douses academic freedom. And students across the country will feel the chill.

"It's difficult, as a teacher, to say they have not done serious harm," comments Lacks, moving beyond her own jobless plight to consider implications. "Every teacher has to think about whether his or her job is in jeopardy before doing anything. What have we come to?"

After fighting cynicism valiantly for three years, Lacks is now convinced that "teachers who want to teach are an endangered species." But the damage that most worries her isn't good teachers' daily fear, it's "the ramifications of that fear on the students. Now there is no way to alleviate that."

Chief Judge Richard S. Arnold (who, incidentally, stepped down in April) set the tone early in his opinion, writing 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." Bottom line: The Eighth Circuit wants teachers to uphold the standards of "civility," even if that means censoring early attempts at self-expression. They held, as a matter of law, "that the school board had a legitimate academic interest in prohibiting profanity by students in their creative writing." Arnold even cited the Supreme Court opinion that public education "must inculcate the habits and manner of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government."

Civility itself isn't terribly controversial; it's nice, in fact. But at the cost of free speech?

The Appellate Court pronounced the issue "too plain for argument," but the District Court certainly hadn't thought so. They'd held that "Lacks did not willfully violate board policy 3043," Arnold recapitulated, "because she believed that profanity was permitted in the context of creative expression in the classroom." When he and two other appellate judges reviewed the record, they decided there was sufficient evidence that Lacks had acted willfully. "The board might have chosen a lesser form of discipline," he conceded, "especially in view of Lacks' long and devoted service. (But) it was not required to do so by law."

Arnold admitted "some confusion within the school district as to whether reading aloud literature containing profanity might violate the school board's prohibition." A curriculum coordinator believed profanity in a videotaped play would be OK; the assistant superintendent for curriculum said teachers should "not allow students to read aloud profanity contained in literary works," regardless.

Acknowledging, then disregarding, the confusion, Arnold wrote that Lacks must have known the student-discipline code would apply to classroom assignments (even though other teachers in the district had testified that the two were, in their minds, entirely different contexts). The appellate court also dismissed contradictions and unknowns in the testimony: "Under Missouri law, assessing the credibility of witnesses is the function of the school board, not the reviewing court.... We must read the record in the light most favorable to the school board's decision."

As for the jury verdict of race discrimination, the appellate court found insufficient evidence, in school administrators' rhetoric about blacks and whites, that there was discrimination -- "especially given that Leslie Hogshead, the president of the school board, who signed the statement, testified that she did not believe that Lacks' case involved racial issues." (They expected her to say it did?) "Moreover," wrote Arnold, "having race on one's mind is not the same thing as acting because of race."

The Ferguson-Florissant Board of Education feels vindicated: Obviously, they "acted appropriately in protecting students from the use of profanity and racial epithets in the classroom." The ruling is not an indictment of Lacks, they hasten to add, "merely an affirmation of the proper roles of authority between our district and our teachers."

What effect will this affirmation of authority have on future educational cases? "Clearly it's a victory for school boards," observes Alan Howard, professor of constitutional law at St. Louis University. "It's conceivable that school boards will read this case broadly as giving them carte blanche in determining, not only curriculum, but also how courses should actually be taught."

This case is also a victory for "the state as teacher," he continues, because it says a school board can go far toward stamping out repetitive use of profanity in a classroom context. "Arnold seems to write broadly enough that this applies even to written work that no one sees except the teacher," remarks Howard. "There is this paternalism, that it is wrong whenever. And there is no discussion of what constitutes profanity. Will they have to violate their own ban by making a list?"

Lacks will consult with lawyers and the National Education Association before deciding whether to take the case to the Supreme Court, which generally accepts only a very limited number of student speech-regulation cases. Meanwhile, she's hoping that people bear in mind the testimony that's already part of the public record; it hasn't changed, and neither have the original findings of judge and jury.

Still, "what people live with is the decision," she sighs. "All the rest gets lost."

So will today's students, the first time they try to write something honest about a world full of gang violence, drugs and sex. If they use street language, they won't be guided into deeper meanings; they'll be scolded for their lack of civility and informed that they are jeopardizing their teacher's job.

And if they recast it as a Shakespearean sonnet, it'll still be too filthy to read aloud in class.