By Moisy Shopper
Commentary Friday, July 10, 1998 in Editorial Section


In reading the U.S. Court of Appeals decision in the Cissy Lacks case, I was reminded of my own undergraduate and medical school education.

As an undergraduate I majored in biology and took the hard scientific courses standard for a pre-medical education of that day. Four years of medical school taught me a great deal more, but by its very intensity it was a very narrowing and inhibiting education. I learned so much about how the body worked down to the intracellular and molecular level that I almost forgot that the subject of these studies was indeed the human person.

My later psychiatric and psychoanalytic education not only emphasized the uniqueness and the importance of the individual person, but also made relevant to the human condition many other areas of study such as literature, culture and creativity. These were seen as pathways to those unmeasurable, unquantifiable things called human passions, aspirations and motivations.

While it would be presumptuous of me to comment on the legal arguments in the appeals court decision, written by Judge Richard S. Arnold, I feel less restrained in critiquing his non-legal reasoning, which to me has all the earmarks of a highly technical but limited education.

I found it unusual that if a student were to engage in "profanity," under the Ferguson student discipline code, the worst that could happen to the student was "a verbal reprimand, loss of class or school privileges . . . or a temporary separation from peers." Significantly, there is no mention of suspension or expulsion from school. However, for the teacher who was accused of "permitting" others to use "profanity," she was fired after a 25-year tenure as a distinguished teacher.

When the punishment is so far out of line with the alleged offense, I'm surprised that it did not raise in the mind of the judges that there may be issues concerning racial bias on the part of the Ferguson-Florissant School Board, a bias that had been alleged and then sustained by the jury at the trial.

This summary firing of Lacks would certainly fit the definition of being within the "arbitrary, capricious, or unreasonable" guidelines that determine when the court must affirm or negate the decision of a school board. If the board's decision to fire Lacks would be judged to be "arbitrary, capricious or unreasonable" this would serve to negate (by Missouri statue) the decision of the School Board.

Lacks disputes that her principal, Vernon Mitchell, warned her about profanity in the school newspaper, of which she was the faculty advisor. Lacks says that this never happened, nor did Mitchell produce the paper where he said it happened. Mitchell says it happened on several occasions. The School Board believed the principal. The jury did not.

The judges state that, as a matter of law, school boards are the assessor of the credibility of witnesses and their decision is not to be tampered with by the trial jury.

Putting aside the public's assumption that a jury is given the responsibility of assessing credibility and putting aside the customary practice of a school board backing its principals and superintendent, let's look more closely at the newspaper issue.

In their opinion, the judges quote a 1986 case (Bethel School District), where "a student was disciplined for using sexually suggestive language in a speech before a high school assembly. . ." "He was told that the speech was inappropriate," "he . . . should not deliver it" and that if he did there could be "severe consequences."

The 1986 ruling stated "even the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct, disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code. . ."

The appeals court judges ignored the concept of "disruptive of the educational process." If "disruptive" is the issue, and I believe it should be the issue, the school board hearing and the firing of a distinguished experienced teacher is "disruptive of the educational process" of that class more than any profanity could possibly be.

What is also "disruptive" is the chilling message it sends to other teachers. Will they be able to read aloud literature or perform plays that use offensive speech or profanity? Will they be able to read aloud Shakespeare if they know that certain words were profanity in Shakespeare's days?

Who will be given the responsibility to decide what constitutes profanity? Could an English teacher lead a discussion of the differences between argot, slang, offensive speech, cursing, swearing, profanity, vulgarism and politically correct speech? Or would the teacher have to get a special dispensation on a word-by-word basis?

I believe that Mitchell, the School Board and the three appeals court judges were not interested in the health of the educational process. Disciplining an effective teacher is the price for the enforcement of a rule arbitrarily conceived, thoughtlessly applied and unreasonably enforced.

Lacks' students learned to harness their more profane emotions into acceptable fiction and poetry. I wonder if additional educational experience, perhaps with a teacher of Lacks' qualities, would have helped the judges harness their emotional reactions to classroom profanity into a more thoughtful and discerning opinion. I would like to believe so. Or on the other hand, maybe my own education could be broadened still.