Lacks' Brief in response to the Ferguson-Florissant school district's appeal

Lacks' Brief in response to the Ferguson-Florissant School District's appeal to the 8th Circuit.

This brief outlines the facts of the case as supported by the Jury Decision and by Judge Perry's decision.

Lacks’ Brief in Response to Ferguson-FlorissantSchool District’s Appeal to 8th Circuit

STATEMENT OF THE CASE

1. Nature of the Case

On March 23, 1995, plaintiff-appellee Cecilia Lacks was terminated by the Board of Education of defendant Ferguson-Florissant Reorganized School District ("District" or "the Board"). The Board stated that the reason for the termination was that on two occasions Dr. Lacks had not disciplined students whose creative writing projects contained profanity; the Board declared that this constituted a "willful" violation of a school policy requiring teachers and administrators to enforce the Student Discipline Code.

Dr. Lacks filed suit in Missouri state court challenging her termination under both state and federal law. The Board removed the case to the district court. Prior to trial, the district court held that Dr. Lacks' termination was in violation of Missouri law because the Board had no evidence to support its finding of willfulness. After trial, the jury held that the termination violated the First Amendment, both because Dr. Lacks had not been given reasonable notice that she could be terminated for not disciplining students for profanity in their creative writing and because the Board lacked a legitimate academic reason for its action. The jury further found that Dr. Lacks' race (white) was a motivating factor in the termination, and that the evidence failed to establish that she would have been terminated regardless of her race.

The Board has filed this appeal contesting the court's determination on the state law claim, the jury's findings and certain of the court's instructions on the federal claims, the jury's damage award, and the Board's own removal of the case, which the Board now contends was improper.

2. Proceedings Below

Dr. Lacks brought this suit against the District in Missouri state court. Appellant's Appendix ("App.") 29-41. Count I of the complaint alleged that the termination violated the Missouri Teacher Tenure Act, Mo. St. §§ 168.104 et seq. Count II, brought pursuant to 42 U.S.C. § 1983, alleged that the termination proceedings were not conducted in accordance with the procedural due process guaranteed by the federal Constitution. Count III, also brought pursuant to 42 U.S.C. § 1983, alleged that the termination violated the First Amendment.

The Board removed this action to federal court on the basis that Counts II and III arose under federal law. App. 49-50. Subsequent to removal, plaintiff filed an amended complaint, adding counts alleging that the termination violated the Missouri Fair Employment Practices Act, Mo. St. §§ 213.010 et seq., and Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq., because her race was a motivating factor in that action. App. 75-90.

Because the claim under the Missouri Tenure Act raised a pure question of law, the district court decided that question itself prior to trial on the other counts. The court found in favor of Dr. Lacks, and, as a remedy, ordered her reinstated with back-pay. Lacks v. Ferguson-Florissant Sch. Dist., 936 F. Supp. 676 (E.D. Mo. 1996). The district court also decided the procedural due process claim prior to trial, rendering a decision in favor of defendant, App. 96-101, which is not at issue on this appeal.

The parties proceeded to trial on the First Amendment and Title VII claims. The disposition of those claims is described infra at 18-19.

3. Statement of the Facts

Because the jury found in Dr. Lacks' favor on all of the federal-law claims, the following statement of the facts sets forth the facts adduced at trial on those claims in the light most favorable to Dr. Lacks. See Ryther v. Kare 11, 108 F.3d 832, 844 (8th Cir. 1997) (en banc). The facts relevant to the state-law claim, which was decided prior to trial on the record of the Board hearing, are separately stated infra at 29-36.

a. Prior to her termination, Dr. Lacks had been a teacher with the Ferguson-Florissant School District for almost 25 years. Tr. 298-99; see also Tr. 300-25. During that time, she had established a national reputation as an educator, winning numerous teaching awards. Tr. 305-24. For example, the District nominated her for an award as one of the best journalism teachers in the United States, and she won that award. Tr. 305-07. The District asked Dr. Lacks to be available to speak to community groups on behalf of the District about creativity and how it would be included in the academic curriculum, Tr. 309, and she was appointed to direct the District's International Culture Center and to conduct workshops for teachers on international exchanges and on learning from other cultures. Tr. 315-16. For her work at the Culture Center, the District nominated Dr. Lacks for a state-wide award, which she won, for the best District-wide program in social studies in the State of Missouri. Tr. 317. Dr. Lacks' program was recognized as an exemplary program nationwide. Id.

After teaching for many years at two other high schools within the District, and obtaining her Ph.D. along the way, Dr. Lacks began teaching at Berkeley High School in the fall of 1992. Berkeley High had a student body that is 98% African-American, Tr. 1401, and it had the largest "at-risk" (or low-income) student body and the lowest standardized test scores among the high schools in the District. Tr. 1355-56, 1440-42.

When Dr. Lacks began at Berkeley, she found that the students "seemed to be disengaged from the curriculum and didn't seem to feel that they had anything important to say." Tr. 327. To improve that situation, she initiated a series of changes to the program at Berkeley, working to establish a journalism class, a school newspaper, a literary journal and a poetry competition, none of which had been in existence at Berkeley for years. Tr. 331-32, 336-40. She also added, pursuant to District curricular guidelines, a creative writing component to the English courses she was assigned to teach. Tr. 331.

b. In teaching creative writing at Berkeley High, Dr. Lacks employed the same teaching methodology as she had employed throughout her career -- a methodology which the District itself endorsed and recommended to teachers of creative writing. Tr. 345-46, 350. Referred to at trial as the "student-centered" method, and originally developed in the 1960's by educator James Moffett, Tr. 346-349, the central tenets of this methodology, as summarized in guidelines to teachers distributed by the District, are as follows:

Don't tell writers what should be in their [creative] writing or worse, write on their pieces. Build on what writers know and have done, rather than bemoaning what's not on the page, what's wrong with what is there. Resist making judgments about the writing. [Tr. 348; Trial Exh. 195].

The District not only recommended that its own teachers use this method, but acted as a national dissemination center for literature supporting the method. Tr. 346.

Dr. Lacks was deeply committed to the value of the student-centered method that the District endorsed. As she explained, that method dictates that the content and language included in students' initial creative writing efforts should not be controlled by the teacher,

[b]ecause from the research and from information even in our own curriculum, students shut down when a teacher starts making judgments about the content. The students simply decide that they are writing then for the teacher, and the whole concept of voice that I talked about before just totally disappears. Students think they have no voice. The only voice is the voice of the teacher telling them at some point what they should or should not be writing about, and basically the language arts becomes much less meaningful for students. Sometimes they stop totally. [Tr. 351-52.]

In following the student-centered creative writing method recommended by the District, Dr. Lacks, over the years, found that a number of her students used profanity in their works -- a phenomenon of which school administrators were aware but to which they did not object. For example, on at least two occasions while Dr. Lacks was teaching at McCluer North High School (between 1987 and 1991), her students read poetry containing profanity, including the word "shit" and the word "nigger," in the presence of a school administrator, who did not raise any objection. Tr. 505-06, 512-13, 841.

In fact, on one of those occasions the administrator wrote a positive evaluation of the day's lesson, stating:

This was a very effective and interesting lesson. . . . I was impressed by the fact that the students were not reluctant to share their writing. I think this is due to the supportive atmosphere you have created in the class. . . . The stories produced by the students were varied, and for the most part, creative and well written . . . . Your attempt to get the students to write from the perspective of the individual pictured [in a photograph] . . . was very successful. [Tr. 513.]

On another occasion, one of Dr. Lacks' students at McCluer North wrote a short story containing profanity, and, despite the profanity, the story was displayed without objection on the library wall. Tr. 378-79.

c. At trial, Dr. Lacks recounted an example of how, during the 1992-93 school year at Berkeley, her use of the student-centered method led one student, Reginald, to progress in a few weeks from complete non-participation in classroom activities, to initial efforts at poetry (in which he wrote two highly disjointed poems that contained profanity and resembled crude, hard-core rap lyrics, with references to oral sex), to composing poems with very different language, including a poem that won the highest district-wide award for student poetry.

As Dr. Lacks explained:

A. Reginald came into my class and he wanted to do absolutely nothing but put his head on his desk in the back of the room. He did not talk to anyone. He did not talk to me. He wouldn't do assignments. I would send him to the guidance office, he would throw away the sheets of paper. I would send him to the principal, I would get a note back saying that I should send him during my class, but he wouldn't go. I continued to send -- nothing worked for Reginald. He was totally silent, totally disengaged, totally disconnected from me, from school.

Q. All right, did he later stop putting his head down in the class?

A. Yes.

Q. About when did that occur?

A. When we started doing the poetry writing.

Q. How did you organize physically the classroom when you began the poetry writing?

A. The class was in a circle so we could talk to each other and share work.

Q. And did Reginald sit in the circle?

A. No.

Q. Where did he sit?

A. He sat in the back of the room with his head on his desk.

Q. What did the other students do?

A. They told me that if they had to sit in the circle, Reginald would have to sit in the circle, I should force Reginald into the circle.

Q. What did you tell them?

A. I told them there was no way I could force Reginald in the circle short of picking up the desk, but that they could get him in the circle by doing things so interesting to him that he would be jealous and come into the circle.

Q. Did that happen?

A. It did.

Q. How soon after did it happen?

A. Two days after we started doing things in poetry, he started moving into the circle.

Q. Okay, and this first poem that is listed on Exhibit 18 was written you say about three weeks after he moved into the circle?

A. Yes.

Q. Okay, would you read it for us, please?

A. Sure. It's called "Alone".

"I'm all alone in this 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 hatin'.

I guess that's why I have low self-esteem.

The only time I show love is in my dreams."

[Tr. 364-65.]

Reginald testified at trial that when he learned what he was capable of, he became embarrassed by his early efforts, Tr. 1009, but that if Dr. Lacks had criticized the vulgar language in those early efforts, he probably wouldn't have written again. Tr. 1013; see also Tr. at 1014 ("I don't think you understand where I was at in this class, I was not really participating. . . and so . . . if I was just to write my name, [it] 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.")

d. During the entire time in which the above-recounted incidents occurred, School District Policy 3043 was in effect. That policy provides in pertinent part:

All employees of the district shall share responsibility for supervising the behavior of the students and for seeing that they meet the standards of conduct which have been or may hereafter be established by the Board or its agents. When necessary, any employee of the district may engage in reasonable physical restraint of students to maintain orderly student conduct.

The Student Discipline Code of the Ferguson-Florissant School District provides a uniform standard of conduct for all public school students (see Appendix F). It is meant as a guideline and not as an exhaustive list of all prohibited acts. It will be distributed to and discussed with students annually under the direction of the building administrator in charge before the end of the first month of school. [Trial Exh. 96, p. 55.]

The Student Discipline Code in turn provides in pertinent part:

TYPE II BEHAVIOR:

Student behavior that is disorderly or unacceptable but does not violate the Type I standards is known as Type II Behavior. Students who engage in Type II Behavior will not receive a Superintendent Suspension or an expulsion, but will be appropriately disciplined by the principal or other school official.

Type II Behavior includes tardiness, unexcused absence, leaving school grounds without permission, cheating, fighting, theft, gambling, use of tobacco products in unauthorized areas, forgery, littering, profanity, insubordination, refusal to identify self to school officials, verbal abuse, refusal to comply with directions of staff, class disruption, inappropriate dress, trespassing, obscene gestures, lying to school authorities, inappropriate physical contact between students, possession of glass bottles, and any other inappropriate behavior as defined by school officials. Beepers or other electronic devices not part of the instructional program will not be allowed in school. [Id. at 109.]

At trial, Dr. Lacks explained that she diligently enforced the Student Discipline Code's prohibition against profanity. Tr. 451-52. See also Tr. 1037 (student testimony that Dr. Lacks disciplined students for using profanity). Her understanding, however, was that the Discipline Code spoke to the behavior of students which disrupts the instructional program -- such as the use of profanity by students in the hall or in their classroom interactions with one another -- and not to work that is carried out as part of the instructional process pursuant to an assignment:

I enforce the student Discipline Code, meaning, you will not do anything to disrupt the class. One of the things that you can't do, you cannot use profanity directed toward each other in the classroom. [The Student Discipline Code] is specifically for the behavior of the student. But in creative writing, that's the instructional process . . . . It has all to do with creativity, how students make characters, how they create subjects they choose to write about. It has nothing to do with student discipline. [Tr. 453.]

e. This interpretation of Policy 3043 was uniformly shared by Lacks' fellow teachers, and by a number of administrators as well. Karen Price, who was the Chairman of the English Department at Berkeley High School -- and a person whose opinion the administration initially sought in investigating Dr. Lacks -- testified as follows in response to a question asking her to state her understanding of the Student Discipline Code:

A. I did not think it was related to creative writing or reading of literature. I thought that had to do with student behavior.

Q. Would you say that a student writing creative writing in the classroom no matter what language is contained in the writing, do you feel that the student would be necessarily misbehaving because they include street language?

A. I don't think they are misbehaving.

Q. What do you think they are doing?

A. I think they are trying to put words in a character's mouth that reflect what kind of person they are writing about. I think they are trying to say I was in this conversation, and it was said, or I said it. If they are putting it in quotes, they are trying to give a flavor to their writing, sometimes.

Q. Have you ever known of a teacher to be disciplined for what was contained in a student's creative writing?

A. No.

Q. Or for profanity or street language contained in the student's creative writing in the classroom?

A. Never.

Q. Have you ever known of a teacher to be fired because students in her classroom read aloud their own written works containing street language?

A. Never. [Tr. 963-65.]

Dr. Larilyn Lawrence, the District's Curriculum Co-ordinator for Reading and Language Arts -- a person whom the administration also initially consulted in its investigation -- testified to the same effect:

Q. . . . [A]re you aware of any policy or rule in the Ferguson Florissant School District that prohibits teachers in the classroom from allowing students to include street language in their creative writing?

A. No, I am not.

Q. What is your understanding of the applicability of the [student] discipline code to creative writing?

A. I don't think that there is an application, not as I understand it.

Q. Well, how is a student including a piece of street language or profanity in creative writing, do you think, how does the Student Discipline Code apply to that?

A. I just don't think it does. We're talking about here an assignment where you're creating characters, and in order to create them, if you need to use the language, the setting, the situations that those characters are in, then you create a script, a play, and that is, I suppose, no different than writing an essay. It's a special kind of an assignment. It's not just the back and forth of kids in the classroom without any assignment attached. [Tr. 1263-65.]

f. Students of other teachers in the District also had used profanity in their creative writing assignments with the knowledge of administrators in previous years and with no repercussions. Indeed, of the numerous teachers and administrators who testified at trial, not one could recall even a single instance, prior to the termination decision in this case, in which a student had been disciplined for using profanity in a classroom writing assignment, or an instance in which a teacher had been disciplined for failing to mete out discipline to students who used profanity in such assignments.

For example, a student wrote a one-act play called, "Everything You Wanted to Know About Sex But Were Afraid to Try," in which the names of the characters were Freddy Fuck, Peter Prick, Sally Slut, and Penny Prude. Tr. 2043-44. The teacher gave the student an "A." Tr. 2044. The assistant principal read the play and "just laughed about it"; he disciplined neither the student nor the teacher. Tr. 2044-45.

Berkeley High School Principal Mitchell himself had been present when a school-sponsored, student-written play entitled "How Ya Livin'" was performed at the school for the community at large under the supervision of Berkeley High drama teacher Sharita Kyles -- who, unlike Dr. Lacks, was African-American. The play depicted gangs, gang violence, teenage pregnancy, drugs and drug use; and it contained profanity -- including the word "fucking," Tr. 1383, Trial Exhs. 247, 248 -- as well as a student pulling at his crotch and saying "thang," and students dancing in a manner that was highly sexually suggestive. Tr. 1383; Tr. Exh. 247. After attending the play, Mitchell neither expressed a concern nor imposed any discipline on either the students or the teacher. Tr. 718-19, 1380, 1383-86.

In the spring of 1994, an African-American substitute teacher, John Mitchell (who, unbeknown to Lacks, was Vernon Mitchell's nephew) showed a Louis Farrakhan recruitment tape to Dr. Lacks' class and made anti-semitic remarks directed in part at Dr. Lacks, whom John Mitchell knew to be Jewish. Tr. 495. In response to an assignment from Dr. Lacks to write a journal entry relating to the day that the substitute teacher was present, a student wrote a paper which said in its entirety:

We read out loud about Louis Farakhan [sic] and how the white people and the Jews tried to persecute them. But Louis wouldn't have it so he told them honkies and them Jews and them chinks that if they mess with his people, he mess with them, and also, Louis Farakhan believed that all white peoples are devils, and I agree, because all they want to do is use you for their own use. But check this, I ever seen a white or a Jew touch me, I'm going to kill the monkey crackers and them chinks because I hate them all. And another thing, I don't care what Hitler did to you. That was in Russia, and this is the U.S., and they love you all and hate us. [Tr. 495.]

Upon receiving this piece of writing, Dr. Lacks showed it to Principal Mitchell and explained the circumstances under which it was created. Tr. 496. Despite the profanity in the piece -- the uses of the word "chink," "honkie" and "monkey cracker" -- to say nothing of its other aspects -- Mitchell did not suggest that either the student or the substitute teacher be disciplined. Tr. 498, 501.

g. In October, 1994, after all of the aforementioned incidents had taken place, Dr. Lacks gave her eleventh grade English students a creative writing assignment in which the students were asked to write a play about themes that were important to them, using dialogue natural to the characters created. Tr. 410. Dr. Lacks did not instruct or encourage the students to use profanity. Tr. 411. This assignment was given just after a unit in which the students had read the Pulitzer-Prize winning play "Fences" by August Wilson and had studied other acclaimed dramas. Tr. 407-09.

The students were instructed to divide into four groups, to write a script with the members of their group, and then to read and perform the script aloud to the class. Tr. 411. The students' scripts were to be used in the classroom as an exercise in play writing; the purpose of the assignment was not to produce plays for any outside audience. Tr. 411, 417-18. Dr. Lacks had made preparations to follow up on the assignment the following semester by inviting actors from St. Louis' Black Repertory Theatre to come to the class. Tr. 414. Then, "[w]e were going to do the script writing again, this time . . . they will have talked to professionals about script writing, and do something new, another version, with a little more knowledge." Tr. 415.

Three of the four student groups prepared scripts touching on themes such as gang violence and inter-gang romances, and those scripts contained a great deal of profanity. See Tr. 286. At least in part, the students were writing on matters known to them from experience: Karen Price, the Chairman of the English Department at Berkeley, testified that "many of our students have experienced violence in their lives. I personally know that in real life, one of the students on the video was arrested on a drug charge. In real life, one of the male students [on the video] witnessed a random shooting of a child by warring gangs." Tr. 953. See also Tr. 904-05 (testimony by one of the students that her characters' speech was "slang, what you say to your friends, and slang is like where you understand each other, maybe people on the outside looking in wouldn't understand, but you do").

In accordance with her understanding of the District's recommended "student-centered" teaching methodology, Dr. Lacks did not object to the use of profanity in the scripts.

The scripts were read by each group to the whole class, and the presentations were videotaped so that the students could see themselves speak and thereby work to improve their oral presentation skills. Tr. 416.

No student or parent complained about the script-writing exercise at the time it was assigned or performed. Tr. 360, 1359. However, on January 10, 1995 (three months later), a student by the name of Jewell, who was also in Dr. Lacks' journalism class -- and whom Dr. Lacks had just that day reprimanded for not doing her work and for not producing articles for the paper, Tr. 475 -- complained to the administration about Dr. Lacks and included among her grievances Dr. Lacks' tolerance of profanity in the creative writing exercise in the English class. In discussing the incident, Jewell mentioned that there were videotapes. Tr. 1359.

Upon hearing this, Principal Mitchell went into Dr. Lacks' closet in her classroom, took the tapes, and watched them. Tr. 1359-60, 456.

h. As Mitchell admitted at trial, he saw the drama exercise from the outset of his investigation as "black folks acting a fool and white folks videotaping it." Tr. 1392. Immediately after watching the tape, Mitchell telephoned Dr. John Wright, the District's Assistant Superintendent for Personnel, who also is African-American. Tr. 1763. That evening, Mitchell brought the tapes to Wright's office at the District's central administration building and met with Wright and Barbara Davis, the Assistant Superintendent for Instruction. Tr. at 1763. The three of them then watched the videotape. The District's Superintendent, Robert Fritz, was present for a small portion of the viewing. Tr. 1764. (Neither Davis nor Fritz is African-American).

The next day, Mitchell, Wright and Davis interviewed a student of Dr. Lacks' named Everette as part of their investigation; it was in the course of that interview that Mitchell made the statement quoted above to the effect that his reaction to the drama exercise was that it represented "black folks acting a fool and white folks videotaping it." Tr. 1392. Mitchell testified that, in making the statement, he was explaining why he (Mitchell) was "offended" by the "very bad stereotype of black people" he saw in the tapes, Tr. 1393, and that he was "trying to challenge Everette's consciousness about what he [Everette] was doing, because the discussion earlier was that he [Everette] did not care." Tr. 1426.

At around the same time, Mitchell stated to a group of administrators, including Dr. Larilyn Lawrence, that "Cissy Lacks had made black fools of her students." Tr. 1269. Dr. Lawrence, who had seen the videotape and knew Dr. Lacks, testified that she was "shocked" and "taken aback" "by what he [Mitchell] had said to me," so much so that "I could not respond to it." Tr. 1269.

The record contains substantial evidence of prejudice on the part of Vernon Mitchell against white teachers. Rosa Gladney, an African-American teacher who worked under Mitchell for ten years, testified that, in a conversation she had with Mitchell in 1990, "he said that some white teachers had moved out of Berkeley and they were coming back just to draw their paycheck, and he said there was some white teachers that did not want to work at Berkeley, and he said that some white teachers did not care about the students." Tr. 1316. Ms. Gladney was "very upset" by Mitchell's statement, "[b]ecause I don't think you're supposed to inject race into anything unless it's actually there." Tr. 1316. Board President Leslie Hogshead testified that between 1992 and the time of the hearing in 1995, she had received "several" complaints from teachers to the effect that Mitchell was prejudiced against white teachers. Tr. 1492.

There was evidence that Dr. Wright also saw the videotape incident in racial terms. He testified that he made the assumption, solely from watching the video -- in which Dr. Lacks is not pictured -- that Dr. Lacks "was afraid of her African-American students." Tr. 1656. And Lois Bliss, a colleague of Dr. Wright's, testified to the effect that Dr. Wright told her it was the perception of a lot of parents that Dr. Lacks would not have taught the same way had her students been white. Tr. 1332.

On January 25, 1995, Dr. Lacks met with Mitchell, Wright and Davis and explained her understanding of the District's recommended student-centered teaching method and why she taught the drama exercise as she had. Tr. 469-71. In that meeting, Dr. Lacks on her own accord brought with her Reginald's poems -- including both "Alone" and the two initial rap-style poems containing the profanity discussed above -- to show how her use of the student-centered approach had succeeded in the past. Tr. 471, 76. Unbeknown to Dr. Lacks, Dr. Wright had already begun drafting charges against her; the only apparent effect of the January 25 meeting was that Dr. Lacks' failure to discipline Reginald in 1992 for his first two poems was now made part of the formal charge against her, which was issued on January 27.

The decision to press for the termination of Dr. Lacks was made at a meeting of the Superintendent's cabinet. Tr. 1710, 1711. Mitchell, who was present at the meeting and was one of the decisionmakers, Hrg. Tr. 891, recommended Dr. Lacks' termination. Id.

Pursuant to Missouri state law, Dr. Lacks, as a tenured teacher, had a right to a hearing before the Board of Education, and she exercised that right by requesting a hearing.

Two days prior to the hearing, Mitchell and Wright conducted a meeting for the stated purpose of showing the videotapes to the parents of Dr. Lacks' students so that they would not see the tapes for the first time at the Board hearing. Tr. 923, 1390-91. In fact, however, persons other than parents, including Berkeley community activists attended the meeting -- although a union representative seeking admittance on behalf of Dr. Lacks was denied admittance. Tr. 923-24, 1433-37, 42. That representative, Graylon Brown, heard one person who exited the meeting state to a television news reporter that she thought "Cissy Lacks should be executed." Tr. 926-27.

Mitchell and Wright, among others, testified at the Board hearing. The evidence presented to the Board is discussed infra at 29-36. On March 23, 1995, at the conclusion of the hearing, the Board voted 5-2 to terminate Dr. Lacks, declaring that she had "willfully" violated Policy 3043. The Board issued a press release at the time of its decision -- and two weeks before the Board elections, Tr. 1501 -- stating that Dr. Lacks' conduct not only violated school policy but amounted to a "violation of the ethical teaching standards practiced by all educational professionals." App. 1009. The Board also stated that "the content of the video is a violation of our black community; it is a violation of our white community." App. 1008. The press release then went on to say that "[t]he style of teaching used by Ms. Lacks may have been fitting for 1970s students who were beginning to break free of a structured social system. It is however inappropriate in today's social climate." App. 1001.

i. At trial, Dr. Lacks testified that, as a result of the termination and the accompanying press release, she was unable to find another teaching position, despite making over 40 applications, and despite her previously outstanding reputation as an educator. Tr. 544. Dr. Lacks obtained one interview for a teaching position, but was subjected to a series of questions about her status as a "hot potato," which left her feeling "humiliated." Tr. 547. She testified further that her standing in the community suffered -- particularly in that, after having spent many years working for groups dedicated to facilitating improved relations between the African-American and Jewish communities, she no longer could be effective in that role. Tr. 550-51. Dr. Lacks testified as well that she has suffered extreme anxiety caused by her termination. Tr. 551. As a result of that anxiety, she began overeating and gained a lot of weight, and she also lost the creative energy that had made her an accomplished photographer, whose works had been displayed in art exhibits. Tr. 557. In addition to this, Dr. Lacks also received a series of harassing and threatening telephone calls over a seven-month period after her hearing, some in the middle of the night; and she suffered other forms of verbal abuse as well, Tr. 549, such that she found herself in the position of having to "always defend myself." Tr. 551.

4. The Instructions and the Jury Verdict

The jury, by its answers to a series of special interrogatories, returned a verdict in favor of Dr. Lacks on her First Amendment claim and on her race discrimination claims. With respect to the First Amendment claim, the jury answered "No" to each of two questions posed by the court's instructions with respect to the permissibility of the termination: "Did plaintiff have reasonable notice that allowing students to use profanity in their creative writing was prohibited?"; and "Did defendant school district have a legitimate academic interest in prohibiting profanity by students in their creative writing, regardless of any other competing interests?" App. 341. The jury was instructed, without objection, that if it found for Dr. Lacks on her First Amendment claim it should award damages for any "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional reputation, and other non-pecuniary losses" caused by the First Amendment violation. App. 912-915. The jury awarded $500,000 in such damages. App. 342.

With respect to the race discrimination claim, the jury was instructed that, on the issue of liability, it should find in favor of Dr. Lacks only if it found "by the preponderance of the evidence" that "plaintiff's race was a motivating factor in her termination." App. 913. The jury then was instructed that even if the foregoing finding was in favor of plaintiff, no damages should be awarded if it were "proven by the preponderance of the evidence that defendant would have discharged plaintiff regardless of her race." App. 914, 915. The jury found for Dr. Lacks on both questions and accordingly awarded her damages for emotional distress and other non-pecuniary losses on her race discrimination claim in the amount of $250,000. App. 339-40.

SUMMARY OF ARGUMENT

All of the arguments advanced by the Board lack merit, and the judgment should be affirmed.

1. 1.Because Dr. Lacks' complaint presented federal claims and her state-law claim was within the district court's supplemental jurisdiction, the district court had jurisdiction to enter its judgment. The Board's belated attack on its own removal of the case must therefore be rejected. This would be true even if the Board were correct that a purely "appellate" claim seeking review of an administrative decision is not within the "original" jurisdiction of the district courts. But that proposition is incorrect, and would not be applicable here in any event.
   

2. 2.The district court correctly determined that the Board's termination of Dr. Lacks was contrary to Missouri law because the record before the Board contained no evidence that she willfully violated Board policy.
   

3. 3.Dr. Lacks' use of a teaching methodology according to which she did not discipline students for their speech was itself "speech" entitled to First Amendment protection. The record supports the jury's findings that the termination violated her First Amendment rights, both because she had not been given reasonable notice that she could be terminated for not disciplining students for profanity in their creative work and because the Board lacked a legitimate academic reason for its action.
   

4. 4.The record supports the jury's findings that race was a motivating factor in Dr. Lacks' termination and that there was no proof she would have been discharged regardless of her race.
   

5. 5.The damage award is not excessive, and the district court did not abuse its broad discretion in denying the Board's request for remittitur or a new trial on damages.
   

ARGUMENT

I. THE DISTRICT COURT HAD SUBJECT MATTER JURISDICTION

This case was removed to federal court by the Board. Now, with all of the substantive claims having been resolved against the Board on the merits, the Board maintains that it improperly removed the case, that the district court never had jurisdiction, and that years of litigation in federal court have been for naught. Not only is the Board's jurisdictional argument appallingly belated, but it is simply wrong.

A. Once a case that was removed has gone to judgment, the issue is not whether the case was properly removed in the first place (although this case was properly removed), but whether, at the time of judgment, the district court would have had jurisdiction had the case been filed in federal court. Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 700, 702 (1972). As long as the court had jurisdiction in that sense, the validity of removal cannot be raised on appeal: "[t]o wipe out the adjudication post-judgment, and return to state court a case now satisfying all federal jurisdictional requirements, would impose an exorbitant cost on our dual court system, a cost incompatible with the fair and unprotracted administration of justice." Caterpillar Inc. v. Lewis, 117 S. Ct. 467, 477 (1996).

The District does not dispute that Dr. Lacks' federal claims under the First Amendment and Title VII were within the court's original jurisdiction. And the state-law claim challenging Dr. Lacks' termination was within the court's supplemental jurisdiction under 28 U.S.C. § 1367(a), which provides that, "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."

Dr. Lacks' state-law claim arose out of the same event -- her termination -- as the federal claims. The Supreme Court has squarely held that a federal court has supplemental jurisdiction in that circumstance: "[t]he state-law claims fell within the jurisdiction of the District Court to which the action was removed because they derived from the same nucleus of operative fact as the federal-law claim: [the defendant's] dismissal of [the plaintiff employee]." Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350-51 (1988). Even more closely on point, in Thompkins v. Stuttgart School Dist. No. 22, 787 F.2d 439 (8th Cir. 1986), this Court held that the district court had erred in failing to assert supplemental jurisdiction (or pendent jurisdiction, as it then was called) over "an appeal from the [termination] decision of a school board," id. at 441, filed by a teacher pursuant to the Arkansas Fair Dismissal Act, because the state-law "appeal" addressed the same basic controversy as the discrimination claims that had been brought by the teacher under federal law.

Because § 1367(a) provides that a federal court may exercise supplemental jurisdiction over "all other claims" that, as here, are sufficiently related to a federal claim, the only way Dr. Lacks' state-law claim could fail to satisfy the applicable jurisdictional prerequisites would be if it did not constitute a "claim" at all. But it plainly is a "claim" within any meaning of the term, just as the state-law "appeal" in Thompkins, 787 F.2d at 441, was a "claim" as to which the federal court had supplemental jurisdiction. Even the decision upon which the Board principally relies, College of Surgeons, supra note 9, characterized the state-law issues presented in that case as "claims." 91 F.3d at 993. The state-law claim presented by Dr. Lacks in this case, by which she, as an employee, sued her employer for a wrongful termination, is even more obviously a "claim" than was the request for judicial review in College of Surgeons.

B. The Board attempts to fashion an argument out of cases -- principally College of Surgeons -- that have held that a state-law claim which does not involve a trial de novo, but instead is "appellate" in nature, is not within the "original jurisdiction" of the federal courts.

Even if that proposition were correct, it would be irrelevant here, because it is sufficient that, as we have shown, Dr. Lacks' state-law claim was within the district court's supplemental jurisdiction. Caterpillar, supra; Thompkins, supra.

But we hasten to add that the proposition urged by the Board is not correct. It is contrary to this Court's decision in Range Oil Supply Co. v. Chicago, Rock Island & P. R. Co., 248 F.2d 477 (8th Cir. 1957), where the Court held that a state-court proceeding for review of an order of a state railroad commission was properly removable notwithstanding the fact (of which the Court was fully aware, id. at 480) that as a matter of law the judicial proceeding was confined to deferential review of the commission's decision, on the administrative record. The Court expressly rejected the argument that "the case is not removable because the Federal court did not have original jurisdiction." Id. at 479 (emphasis by the court).

The decision in Range Oil constitutes the law of the Circuit, and is binding on the panel. See, e.g., Federal Deposit Ins. Corp. v. Bowles Livestock Comm'n Co., 937 F.2d 1350, 1354 (8th Cir. 1991) (even in the face of an intervening Supreme Court decision creating arguable tension with a prior panel opinion, "a panel of this court is not free to circumvent prior panel decisions, absent a clear indication that those decisions are overruled.")

Range Oil was in any event rightly decided. The argument that the original jurisdiction of the federal courts is limited to claims involving a trial de novo is made of thin air; it has no grounding in the language of Article III or the jurisdictional statutes. What is more, if the argument were correct, it would apply to federal “appellate” - type claims as well as to state claims of that type. Yet district courts regularly entertain actions for review of federal administrative decisions. See, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Wilkins v. Secretary of Interior, 995 F.2d 850 (8th Cir. 1993). And in such cases, review is confined to determining whether the agency action was "arbitrary and capricious," Wilkins, 995 F.2d at 853; the district court must confine its review to "the identical record that was before the [agency]," id.; and "[t]he proper standard of judicial review of agency decision-making does not permit the district court to make independent findings." Id. See also Camp v. Pitts, 411 U.S. 138, 142-43 (1973). The Supreme Court nevertheless has squarely held that the district courts have original jurisdiction over actions seeking such judicial review. Califano v. Sanders, 430 U.S. 99, 105-07 (1977). See also McCartin v. Norton, 674 F.2d 1317, 1320 (9th Cir. 1982).

Finally, even if there were a valid doctrine prohibiting district courts from acting as purely appellate tribunals, such a doctrine would have no bearing on this case. Unlike the Supreme Court cases cited by the Board, this is not a case in which a litigant has sought to appeal the decision of a state agency acting as an independent adjudicative body. Compare Stude, supra note 12 (state commerce commission adjudicated dispute between railroad and landowner); Horton, supra note 12 (state industrial accident board adjudicated dispute between employee and workers' compensation insurance carrier). In this case, the underlying dispute is, and always has been, between Dr. Lacks and the Board as her employer. As the Eleventh Circuit has held, where a school board acts to discharge a teacher, even if the board conducts a formal hearing before taking that action, "the Board could not have been `acting in a judicial capacity' because it was acting as [the teacher's] employer when it discharged [the teacher]." Thornquest v. King, 82 F.3d 1001, 1004 (11th Cir. 1996). To be sure, the grounds on which the Board's actions can be set aside under Missouri law are narrow. But the fact remains that in her state-law claim, Ms. Lacks called upon the court (initially the state court and, after removal, the district court) to determine that her employer had terminated her wrongfully, and to make her whole for that violation. The district courts routinely and properly exercise jurisdiction over such claims.

In sum, even if it were correct, contrary to Range Oil, that the district courts do not have "original" jurisdiction over purely "appellate" matters -- and even putting aside the dispositive point that supplemental jurisdiction still could be exercised -- Dr. Lacks' claim against her employer clearly was within the jurisdiction of the district court, and the Board cannot now escape the federal forum it chose.

II. THE DISTRICT COURT CORRECTLY CONCLUDED THAT THE TERMINATION OF DR. LACKS VIOLATED THE MISSOURI TEACHER TENURE ACT, INASMUCH AS THERE WAS NO EVIDENCE IN THE RECORD BEFORE THE BOARD THAT SHE KNEW THAT BOARD POLICY REQUIRED TEACHERS TO DISCIPLINE STUDENTS FOR USING PROFANE LANGUAGE IN THEIR CREATIVE WORKS

A. The Missouri Teacher Tenure Act provides that a tenured teacher may be terminated only on grounds specifically enumerated in the statute, see Mo. Stat. § 168.114.1; and those "[s]tatutory grounds for dismissal are to be strictly interpreted to fulfill the legislature's intent that permanent teachers have a measure of certainty and stability in employment without being subjected to arbitrary school board action." Youngman v. Doerhoff, 890 S.W.2d 330, 341 (Mo. App. 1994). The ground on which Dr. Lacks was terminated -- "willful . . . violation of . . . the published regulations of the board of education," Mo. Stat. § 168.114.1(4) -- allows termination only where a teacher has acted with the specific intent to violate a board regulation. Lacks, 936 F. Supp. at 680, citing Carter County Sch. Dist. R-1 v. Palmer, 582 S.W.2d 347, 349 (Mo. App. 1979); Ortballs v. Special Sch. Dist., 762 S.W.2d 437, 440 (Mo. App. 1988).

As the District acknowledges, under Missouri law a school board's decision to terminate a tenured teacher must be set aside if it is "unsupported by competent and substantial evidence upon the whole record." Mo. Stat. § 536.140.2(3). See Bd. Br. 20; Lacks, 936 F. Supp. at 679-80. To be sure, as the district court recognized, appropriate weight must be afforded to the Board's evidentiary findings. 936 F. Supp. at 680, citing Hudson v. Wellston Sch. Dist., 796 S.W.2d 31, 33 (Mo. App. 1990). But it is equally clear that under Missouri law, "substantial evidence" is more than merely "some evidence." Valle Ambulance v. Missouri Comm'n on Human Rights, 748 S.W.2d 710, 712 (Mo. App. 1988). If a Board's decision is "clearly contrary to the overwhelming weight of the evidence, it is our duty to reverse." Carraway v. Sayad, 717 S.W.2d 280, 282 (Mo. App. 1986); See also Edmonds v. McNeil, 596 S.W.2d 403, 408 (Mo. 1980) (reversing agency on ground that "overwhelming weight of the evidence was contrary to the agency's decision"). In applying that standard in public employee discipline cases, Missouri courts have been careful to keep in mind that the burden of proof is on the employer to establish the grounds for dismissal. See, e.g., Gamble v. Hoffman, 695 S.W.2d 503, 506 (Mo. App. 1985) (collecting cases).

Although the Board's decision terminating Dr. Lacks characterized her conduct as a "willful or persistent" violation of Policy 3043, the Board identified this as a "Conclusion of Law," not a "Finding of Fact, see Addendum 1 to Bd. Br. ¶¶ 16, 21, App. 902-06, and the Board did not make any findings of fact that would support that conclusion of law. Indeed, the Board did not even state whether it viewed Dr. Lacks' conduct as "willful," or whether it viewed the conduct as "persistent;" the Board merely declared in boiler-plate fashion that the conduct was "willful or persistent."

Such conclusory mouthing of statutory terms is not entitled to the weight afforded to findings of fact. See, e.g., Missouri Bd. of Pharmacy v. Tadrus, 926 S.W.2d 132, 135 (Mo. App. 1996) (reviewing court "cannot infer findings from the ultimate decision of an administrative agency"). But even if the Board's conclusion were treated as a finding of fact, it was, as we now show, clearly contrary to the overwhelming weight of the evidence, and therefore was properly overturned by the district court.

B. In the Board hearing, the administration "submitted no evidence indicating the district in fact enforced policy 3043 [prior to Lacks' case] to prohibit students from reading aloud or otherwise using profanity in creative works." Lacks, 936 F. Supp. at 681 (emphasis added). And there was a mountain of evidence that Dr. Lacks, and teachers generally, were unaware that Policy 3043, or any other policy, required teachers to discipline students who used profanity in their creative works.

1. First, Dr. Lacks testified clearly and unequivocally that she did not believe she was violating school policy. Hrg. Tr. 484, 630-31. She cogently explained that she understood the Student Discipline Code to apply to "students' conversational activities within the school," not to profanity uttered as part and parcel of the instructional process. Id. at 484, 543.

Several disinterested witnesses well versed in District policy testified that they too did not believe that the Student Discipline Code applied to student creative works, or that Policy 3043 required teachers to discipline students who used profane language in such works; and there was no evidence that any teacher believed the Policy or the Code did apply.

Two of the witnesses who testified on this subject in the Board hearing were individuals whom the District itself had called upon in the course of its investigation to offer their opinion regarding the drama exercise in question. The first of the two, Karen Price, was the Chairman of the English Department at Berkeley High School. Ms. Price (who also testified at trial, see supra at 9-10), testified before the Board that students in her classroom had on occasion written poems containing the same kind of profane language as was contained in Reginald's first two poems, and that, until the proceedings against Dr. Lacks had commenced, Ms. Price was not aware that it was considered a violation of any policy for a teacher to permit students to use profanity in their creative writing, or for a teacher to permit students to read profanity aloud from works of literature. Hrg. Tr. 823-24, 827; see also id. at 813.

The second witness whose opinion the District initially had sought was Dr. Larilyn Lawrence, the District's Curriculum Co-ordinator for Reading and Language Arts. Hrg. Tr. 834. At the hearing, Dr. Lawrence (who also later testified at trial, see supra at 10), said in response to a question from one of the Board members: "I don't know of any policy that would require, that states that students cannot read [profanities], either silently or orally." Hrg. Tr. 845.

In addition to the testimony we have described, the district court aptly summarized the other pertinent evidence that was adduced in the Board hearing in the following terms (936 F. Supp. at 681):

1. •In the 1993/94 school year, plaintiff showed [Berkeley High School Principal Vernon] Mitchell a student journal entry containing the words "honkey" and "chink," and the statement if "I ever see a white are [sic] a Jew touch me I'm going two [sic] kill them . . ." and Mitchell did not discuss the language with plaintiff or the student, nor did he discipline either the plaintiff or the student. ([Hrg.] Tr. 202) [Testimony of Mitchell].
   

2. •A play written and performed by Berkeley students for the entire student body ["How Ya Livin'"] and attended by Mitchell contained profanity, including at least the word "damn,"[] as well as other conduct classified as Type II violations of policy 3043. ([Hrg.] Tr. 209-12) [Testimony of Mitchell]. Neither the teacher supervising the play nor the students were disciplined in any way. ([Hrg.] Tr. 214-216) [Testimony of Mitchell].
   

[Assistant Superintendent] Wright [who prepared the charges against Dr. Lacks] testified that he did not know whether a student who reads profanity aloud from another author's work could be punished. ([Hrg.] Tr. 100).

Delores Graham, principal at a middle school in the district, was not aware that a student reading profanity from a creative work of literature or that student's teacher would be violating the student discipline code. ([Hrg.] Tr. 892) [Testimony of Graham].

James Nicholson, a playwright who visited plaintiff's classes, testified that he was present when district administrators heard students read profanity from their own creative works, but no administrator ever told him or plaintiff to disallow profanity in the students' creative expression. Nicholson testified that no policy was "verbalized to me or given to me in print." ([Hrg.] Tr. 318).

P.S., a former student of plaintiff, testified that she performed creative writing assignments containing profanity in the presence of a district administrator and the administrator "didn't give a reaction, so we just basically, we went with the flow." ([Hrg.] Tr. 510).

2. In the face of this overwhelming evidence, the District points to nothing in the record before the Board that constitutes "competent and substantial evidence," Mo. Stat. § 536.140.2(3), for the conclusion that Dr. Lacks violated Policy 3043 willfully (i.e., knowing her conduct to be a violation, see supra at 26). Although the Board repeatedly refers to its right to make credibility determinations and to weigh conflicting evidence, see Bd. Br. 21, 24, 28-29, it nowhere identifies any evidence in the record of the Board hearing that conflicts with the evidence we have set out, nor does the Board point to any credibility determinations it made that could support its conclusion as to a "willful or persistent" violation on the part of Dr. Lacks.

When all is said and done, the District's argument reduces to the following: (i) Dr. Lacks was aware of the Student Discipline Code and of the policy requiring her to enforce it, and (ii) those policies are so clear in their application to creating works that she had to know she was violating them. See Bd. Br. 22-23, 26-27, 30. Although the first of those propositions is true, the second surely is not.

As we have seen, not only Dr. Lacks, but other witnesses as well, testified in the Board hearing that they did not understand the Student Discipline Code or Policy 3043 to apply to the content of students' creative writing. There is no ground on which to discredit that testimony. To the contrary, the testimony makes perfect sense. By its terms, the Student Discipline Code sets standards of "student behavior" with respect to matters such as leaving school grounds, littering, dress, physical contact, and the like. Trial Exh. 96, p. 109, quoted supra at 8. To the same effect, Policy 3043 states that "all employees of the district" are responsible "for supervising the behavior of the students and for seeing that they meet the standards of conduct" in the Student Discipline Code. Trial Exh. 96, p. 55, quoted supra at 8. The most natural reading of those policies is that they were written to deal with student deportment, not to address the very different subject of students' creative work. And, as the evidence before the Board demonstrated, Dr. Lacks was diligent in enforcing the Student Discipline Code when students used profanity outside of their creative work, Hrg. Tr. 723-24; she simply did not understand the Code to apply to students' creative works.

Indeed, it strains reason to read the Student Discipline Code, as written, as being applicable to creative writing. The Code flatly prohibits all profanity. Trial Exh. 96, p. 109 (quoted supra at 8). Accordingly, if the Code were applied to students' classroom work, a student would be subject to discipline whenever he or she included any profanity in a creative work (or, for that matter, whenever he or she read aloud any creative work by another author that contained any instance of profanity). But the Board must concede that, although there may be no place for profanity in students' general school behavior, there is a valid place for some use of profanity in creative works; were that not the case, a great many of the classics that are part of the curriculum of school districts across the country, including Ferguson-Florissant, would have to be cast into the outer darkness. To be sure, the Board asserts that the student works in this case contained such extreme use of profanity as to warrant discipline, see Bd. Br. 28-30, but that argument misses the mark. If the Discipline Code by its terms prohibits all profanity, but, as the Board concedes, such a prohibition, albeit sensible in the hallway, makes no sense when applied to students' creative works, it is entirely understandable that Dr. Lacks and other teachers believed that the Discipline Code simply was not intended to apply to classroom writing. The teachers had no reason to think that they were supposed to invent some modified version of the Code, limited to "extreme" use of profanity, and to apply that self-created "Code" to students' works.

At the very least, the language of the policies is not so clear as to constitute "competent and substantial evidence" that Dr. Lacks must have understood the policies to mean what the Board now says they mean. In this connection, the Board's repeated refrain that the policies contain no "exception" for creative writing, see Bd. Br. 22, 23, 27, misses the point. To be sure, the language of the Student Discipline Code might conceivably be read broadly and without limitation. But, to quote the response of then-Judge (now Justice) Breyer to a similar argument, "it is that very circumstance [i.e., "the exhaustiveness of the . . . language [if read] literally"] that creates a problem." United States v. Data Translation, Inc., 984 F.2d 1256, 1261 (1st Cir. 1992).

Exaggerating to explain our point, we find the Government's interpretation a little like that of, say, a park keeper who tells people that the sign "No Animals in the Park" applies literally and comprehensively, not only to pets, but also to toy animals [and] insects. . . . If one met such a park keeper, one would find his interpretation so surprisingly broad that one simply would not know what he really meant or what to do. [Id.]

It is telling that the Board twice seeks refuge in the proposition that it is "empowered to interpret its own policies." Bd. Br. 23, 28. The issue of willfulness turns on Dr. Lacks' understanding of the policies at the time she acted, not on the Board's power to interpret its policies post hoc. Were it relevant, we would submit that Dr. Lacks' interpretation of the policies is much more reasonable than the Board's new interpretation; but the issue is not whether Dr. Lacks interpreted the policies reasonably, but whether she defied them willfully. She clearly did not.

3. Perhaps recognizing that Board Policy 3043 and the Student Discipline Code are not sufficient standing alone to make its case, the Board attempts to find "substantial evidence" in Mitchell's testimony that he had verbally informed Dr. Lacks that he thought the use of profanity in the school newspaper was "inappropriate." Bd. Br. 7, 29. But even if considered in isolation, Mitchell's testimony regarding his communications to Dr. Lacks about the newspaper do not support the Board's conclusion that the conduct for which Dr. Lacks was terminated constituted a willful violation of Board policy.

The evidence that was adduced in the Board hearing pertaining to the newspaper, presented in the light most favorable to the Board, is as follows:

After the first issue of the school newspaper was published, Dr. Lacks submitted drafts of each subsequent issue to Mitchell for his pre-publication approval. [Hrg. Tr. 179]

The first issue -- the only issue Mitchell claimed not to have seen prior to its publication -- contained no profanity whatsoever. Hrg. Exh. 14 (copy of first issue of newspaper).

The only issue of the newspaper that was prepared prior to the October, 1994 drama exercise at issue here that had any arguable profanity in it was the February 1994 issue, which, in one place, used the word "s#@t" in a quotation from a student interviewed for the article, so as to avoid using the word the student actually said to the reporter. That issue was published with Mitchell's approval. [Hrg. Tr. 179; Hrg. Exhs. 14, 37, 38.]

Mitchell, after testifying that he told Dr. Lacks that he found it "inappropriate" for students to use "profanity" in the drafts of articles that were submitted to him, testified further that, by "profanity," he was referring to words using "*" "@" and "#" in lieu of letters. [Hrg. Tr. 248.]

There is a specific Board Policy on "Student Publications" -- Policy 2053 -- which applies to the school newspaper and sets standards for the contents of the paper and for monitoring those contents.

There was no testimony that Mitchell believed that students' use of words containing symbols such as "*" "@" and "#" in the school newspaper violated the Student Discipline Code, rather than simply constituting inappropriate editorial judgment under the separate policy governing the contents of the school newspaper. Nor did Mitchell, or anyone else, testify that Mitchell believed that the students who submitted drafts containing such words should be disciplined pursuant to the Code or otherwise.

Taking all this testimony in the light most favorable to the Board, it does not advance the Board's cause. As the district court correctly concluded: Mitchell's enforcement of [the "student publications" policy] does not translate to an interpretation that profanity is not allowed in student poems and plays under policy 3043, which governs student behavior. In fact, policy 2053 . . . expressly limit[s] the content of student journalism, but does not address limitations on any other form of creative student expression. [936 F. Supp. at 681-82 n.1 (emphasis added).]

In sum, the district court was correct in its determination that the record of the School Board hearing lacks "competent and substantial evidence," Mo. Rev. Stat. § 536.140.2(3), to support the Board's conclusion that Dr. Lacks "willfully or persistently" violated Board policy. Accordingly, the court properly entered judgment in her favor on Count I.

III. THE VERDICT ON THE FIRST AMENDMENT CLAIM SHOULD BE UPHELD

The Board argues that no First Amendment rights are at stake in this case, because (i) the speech involved was of students, not of Dr. Lacks herself, (ii) the speech was obscene, and (iii) "an instructor's teaching method does not rise to the level of protected expression." We show in Part A below that these arguments lack merit. Having established that First Amendment rights are indeed presented here, we then show in Part B that the jury's findings that those rights were violated should be sustained.

A. In Teaching Creative Writing According to a Methodology Under Which Students Were Not Disciplined or Censored for Their Use of Profanity, Dr. Lacks Was Engaged in Expressive Activity That is Entitled To First Amendment Protection

Each of the Board's arguments in support of its contention that no First Amendment rights are implicated in this case is contrary to well-established precedent.

1. A Teacher's Decision Not to Censor Student Speech is Itself "Speech" Within the Meaning of the First Amendment

In its recent decision in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S. Ct. 2338 (1995), the Supreme Court rejected the argument that, because the sponsors of a parade were not expressing their own ideas but were only providing a vehicle through which the various groups seeking to march could express the respective groups' ideas, the sponsors were not entitled to First Amendment protection. The Court explained:

[U]nder our precedent, . . . First Amendment protection [does not] require a speaker to generate, as an original matter, each item featured in the communication. Cable operators, for example, are engaged in protected speech activities when they only select programming originally produced by others. Turner Broadcasting System, Inc. v. F.C.C., 114 S. Ct. 2445, 2456 (1994). . . . For that matter, the presentation of an edited compilation of speech generated by other persons staple of most newspapers' opinion pages, which, of course, fall squarely within the core of First Amendment security, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), as does even the simple selection of a paid noncommercial advertisement for inclusion in a daily paper, see New York Times [v. Sullivan], 376 U.S. [254], 265-66 [(1964)]. 15 S. Ct. at 2345-46.

1The principle that the First Amendment protects not only an individual's own speech, but also the individual's efforts to enable others to speak, is of particular force and relevance in the context of teaching, for reasons that were well expressed by Justice Frankfurter.

By limiting the power of the States to interfere with freedom of speech and freedom of inquiry, and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher's relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers . . . has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice. Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J. concurring).

Consequently, the courts have specifically recognized that the First Amendment protects the right of a teacher to encourage speech by students, regardless of whether the teacher injects his or her own views into the discussion. For example, in Piver v. Pender County Board of Education, 835 F.2d 1076, 1081 (4th Cir. 1987), the court held not only that a teacher's conduct in leading a classroom discussion constituted protected First Amendment activity, but that the First Amendment protection accorded to the teacher was enhanced, not diminished, by the fact that the teacher was not seeking to promulgate his own views but was encouraging students to communicate. So too, in Kingsville Indep. Sch. Dist. v. Cooper, 611 F.2d 1109, 1111 (5th Cir. 1980), the court held that a teacher's method of teaching American history by encouraging "role-playing by students in order to recreate the period of history," id. at ____, constituted protected First Amendment activity. And in Bertot v. School District No. 1, Albany Cty., Wyo., 522 F.2d 1171, 1183 (10th Cir. 1975), the court held that a high school teacher who had been terminated in retaliation for her role as an advisor to a student-written underground newspaper was entitled to First Amendment protection, even though "no writing of her own was involved." (emphasis added).

The Board cites no authority for its rejection of these well-established principles. See Bd. Br. 32-33.

2. The First Amendment Interests at Stake Cannot Be Avoided By Characterizing the Students' Speech as Obscene

Invoking the proposition that "lewd and obscene" speech is not entitled to any First Amendment protection, the Board asserts that the student speech in question here falls into that category. Bd. Br. 33-34. That contention was not raised below and should not be entertained on appeal, see e.g., Andes v. Knox, 905 F.2d 188, 189 (8th Cir. 1990), particularly because the question whether particular speech is "obscene" for First Amendment purposes is a highly fact-intensive matter that must be resolved by a jury, see Miller v. California, 413 U.S. 15, 30-34 (1973), and the Board did not ask the district court to submit any "obscenity" issue to the jury.

Even if the issue were properly presented on appeal, the Board's position lacks merit for two independent reasons.

First, the Board makes no attempt to show that the creative works for which it contends Dr. Lacks should have disciplined her students were in fact obscene under the Miller test. For a writing to be "obscene," it must, inter alia, "appeal[] to the prurient interest." Miller, 413 U.S. at 24. Merely indecent speech, even of a highly offensive and sexual nature, is not obscene. See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726, 751-55, 756 (19__) (opinion of Powell, J.) ("Filthy Words" monologue, full of sexual epithets, "is not obscene in the constitutional sense"). The videotaped drama exercises at issue here do not, ["taken as a whole, appeal to the prurient interest,"] and therefore they are not obscene.

Second, and more to the point, the question here is not whether the First Amendment protects the contents of the students' works as such, but whether it protects Dr. Lacks in her decision not to discipline the student writers. To hold that speech is not protected by the First Amendment does not lead to the conclusion that the First Amendment places no restrictions on the government's power to punish individuals for their role in facilitating -- or here, failing to discipline -- such speech. See Smith v. California, 361 U.S. 147, 155 (1959) (reversing conviction of bookseller for selling a book later judicially determined to be obscene, because there was no evidence that the bookseller knew the book to be obscene at the time of sale; "[t]he existence of the State's power to prevent the distribution of obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise of that power". See also McKinney v. Alabama, 424 U.S. 669, 673-674 (1976).

3. The First Amendment Issues Cannot Be Avoided By Characterizing This as a Case Involving Selection of a Teaching Method

The Board argues that a teacher's choice of a teaching method, as such, is not entitled to any First Amendment protection. Bd. Br. 35. The caselaw does not support that proposition. But in any event, the question here is not whether Dr. Lacks had some broad First Amendment right to select whatever teaching method she preferred. Rather, the question is whether her decision not to engage in censorship and discipline of student speech constituted expressive activity within the purview of the First Amendment. As we have shown, it did, see supra at ____; and none of cases cited by the Board suggests otherwise.

B. The Jury's Findings that the Board Violated Dr. Lacks' First Amendment Rights Are Amply Supported

Having established that Dr. Lacks' First Amendment rights were at stake in this case, we now show that there is ample record support for the jury's finding that her termination was in violation of those rights. We further show that the Board's objections to the district court's instructions are without merit.

The jury found that the termination was in violation of the First Amendment both because Dr. Lacks had not been given reasonable notice that she could be terminated if she did not discipline students for profanity in their creativity writing and because the District's action was not based on a legitimate academic interest. See App. 9ll (instruction); App. 341 (verdict). These two elements were part of a single claim presenting a single injury, and therefore the jury's verdict must be upheld if it is sustainable on either of the two grounds found by the jury. See, e.g., Robertson Oil Co., Inc. v. Phillips Petroleum Co., 871 F.2d 1368, 1376 (8th Cir. 1989) (general award of compensatory damages sustained because one of the plaintiff's four theories of liability was valid, even though his other three theories were set aside); Hinkle v. Christensen, 733 F.2d 74, 76 (8th Cir. 1984); Le Sueur Creamery v. Hakson, Inc., 660 F.2d 342, 346 & n.7 (8th Cir. 1981). As we now show, the verdict is sustainable on both grounds found by the jury.

1. In Terminating Dr. Lacks for Her First Amendment Activity Without Providing Her With Reasonably Clear Notice that Her Conduct was Proscribed, the Board Violated Her First Amendment Rights

a. The Supreme Court has long held that "'[b]ecause First Amendment freedoms need breathing space to survive,'" the government may not penalize someone for engaging in speech or expressive conduct unless it has provided notice sufficient to "clearly inform" the person as to what speech or expressive conduct is prohibited. Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967) (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 438 (1963)).

In Keyishian, the Court held that this requirement of clear notice must be enforced with particular vigilance in cases involving discipline of teachers, because

Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.

When one must guess what conduct or utterance may lose him his position, one necessarily will "steer far wider of the unlawful zone . . . ." Speiser v. Randall, 357 U.S. 513, 526 [(1958)]. For "[t]he threat of sanctions may deter . . . almost as potently as the actual application of sanctions." N.A.A.C.P. v. Button, supra, at 433. The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed.

385 U.S. at 603-604 (emphasis added). See also id. at 601 (to allow teachers to be disciplined for classroom activities without adequate notice would tend "to stifle `that free play of the spirit which all teachers ought especially to cultivate and practice'" (quoting Wieman, supra, 344 U.S. at 195 (Frankfurter, J., concurring)).

Although Keyishian involved faculty members of public colleges, subsequent decisions have held that the requirement of clear notice applies equally to disciplinary actions taken against high school teachers for expressive activities. In a pair of influential cases decided shortly after Keyishian, Judges Charles Wyzanski and Frank Johnson held that the requirement of notice is essential in both settings. Mailloux v. Kiley, 323 F. Supp. 1387, 1392 (D. Mass.) (Wyzanski, J.), aff'd, 448 F.2d 1242 (1st Cir. 1971); Parducci v. Rutland, 316 F. Supp. 352, 356-57 (M.D. Ala. 1970) (Johnson, J.). More recently, the Sixth Circuit held that a biology teacher's First Amendment rights were violated when the school board suspended him based not on prospectively applied standards but on after-the-fact hostile community reaction to his materials. Stachura v. Truszkowski, 763 F.2d 211, 215 (6th Cir. 1985), rev'd only for new trial on damages, 477 U.S. 299 (1986). And in Ward v. Hickey, 996 F.2d 448, 452 (1st Cir. 1993), the First Circuit held that a school board may act against a high school teacher because of her expressive activity in the classroom only if, inter alia, "the school provided the teacher with notice of what conduct was prohibited, see Keyishian v. Board of Regents. . . ."

b. In the face of the foregoing authorities, the Board insists that any speech that constitutionally may be prohibited prospectively, with notice, also can be prohibited retroactively, without notice. Bd. Br. 36-37. The Board further asserts that any right to notice arises solely from the Due Process Clause, not the First Amendment. Id.

These arguments were not raised below. To the contrary, the Board itself (i) proposed an instruction stating that Dr. Lacks' constitutional rights were violated if she did not have "reasonable notice that her students' use of profanity was prohibited by School District policy," App. 952, 968; (ii) quoted Ward v. Hickey approvingly for the proposition that there is "a First Amendment right of public school teachers to know what conduct is proscribed;" (iii) acknowledged that it was necessary for the jury to resolve "[the] fact question of whether [Dr. Lacks] had ample warning", Tr. 2065; and (iv) acknowledged in its post-trial motion that it was proper to "present[] for the jury's consideration . . . the issue of Plaintiff's notice of Defendant's policy concerning profanity as applicable to student writings."

Having not been raised below, the Board's arguments that Dr. Lacks had no First Amendment right to reasonable notice should not be considered by the Court. But those arguments are specious in any event. In Keyishian, the Supreme Court explicitly rooted the notice requirement in the First Amendment. See 385 U.S. at 604, quoted supra at ___. Indeed, Keyishian involved the claim of a teacher who was an untenured "instructor in English" with a "one-year-term contract" and thus had no right to continuing employment. 385 U.S. at 592. Mr. Keyishian therefore lacked the sort of tangible "property" interest in his employment that a public employee must possess as a predicate to asserting a Due Process claim. See Board of Regents v. Roth, 408 U.S. 564 (1972). Mr. Keyishian's victory on his lack-of-notice claim can be explained only if he prevailed on a First Amendment theory, rather than a Due Process theory.

The leading lower-court case on the notice requirement, Ward v. Hickey, also is rooted in the First Amendment. That case involved the claim of "Toby Klang Ward, a nontenured biology teacher," 996 F.2d at 450, and the court squarely held that all public school teachers have "a First Amendment right . . . to know what conduct is proscribed." Id. at 454 (emphasis added). And the whole point of the First Amendment notice doctrine is that even if particular speech is of such a nature that a school would be permitted to adopt a rule or policy prohibiting it prospectively, a school nonetheless "is not entitled to retaliate against speech that it never prohibited." Id. at 453 (emphasis added).

The Board relies on Bethel School District v. Fraser, 478 U.S. 675 (1986), but that decision is not inconsistent with Keyishian and Ward. In Fraser, a student, prior to delivering a lewd and vulgar speech to a high school assembly, showed a copy of the speech to two of his teachers and discussed it with them. The teachers "informed him that the speech was 'inappropriate and that he probably should not deliver it,' and that his delivery of the speech might have 'severe consequences.'" Id. at 678 (internal citations to the record omitted). Moreover, a regulation in effect at the high school prohibited the use of "obscene, profane language or gestures" on campus. Id. After giving the speech in the face of the two specific warnings and the regulation, the student was given a two-day suspension. Id. at 678-9.

The Court rejected the student's claim of lack of notice on the ground that "[t]he school disciplinary rule proscribing 'obscene' language and the prespeech admonitions of teachers gave adequate warning to Fraser that his lewd speech could subject him to sanctions." Id. at 686. Thus, the Court did not hold that the student had no right under the First Amendment to reasonable notice; the Court merely stated that the school in fact "gave adequate warning."

c. The only question remaining is whether the evidence before the jury was sufficient to support the jury's finding that Dr. Lacks was not put on reasonable notice that her conduct was prohibited. The jury's finding must be sustained "unless after viewing the evidence in the light most favorable to the verdict, we conclude that no reasonable juror could have returned a verdict for the [plaintiff]." Ryther v. KARE 11, 108 F.3d 832, (8th Cir.) (en banc), cert denied, 117 S. Ct. 2510 (1997); Kim v. Nash Finch Co., ___ F.3d ___, 1997 WL 471351, *8 (8th Cir. Aug. 20, 1997). Here, the finding is amply supported. The relevant evidence is set out in the Statement of the Case, supra, at ____. To briefly recapitulate:

The Board's own guidelines endorsing the student-centered methodology strongly suggested that teachers should not censor students' creative writing, much less discipline them for what they write. See supra at ___.

On numerous occasions Principal Mitchell and other administrators had encountered the use of profanity in students' assigned written works and had taken no action against the students or teachers, nor even expressed disapproval. See supra at ___. These situations occurred in Dr. Lacks' classes and in the classes of other teachers, and they included such matters as:

1. •a student essay full of hostile references "chinks," "Jews," "honkies" and "crackers," supra at ___;
   

2. •a student-written play performed before a school assembly using the word "fucking" and depicting gang violence and sexually suggestive dancing, supra at ___;
   

3. •a student who wrote and read aloud a sexually-oriented play with characters named "Freddy Fuck" and "Peter Prick," supra at ___;
   

4. •student poetry containing the words "shit" and "nigger," supra at ___; and
   

5. •a short story containing profanity which was displayed on the library wall, supra at ___.
   

6. •There had not been a single instance in which the District had ever applied the Student Discipline Code or Policy 3043 to student creative works. See supra at ___.
   

7. •Every teacher who testified, and some administrators as well, stated that their understanding was that the Student Disciplinary Code and Policy 3043 did not apply to student creative works. See supra at ____.
   

8. •That understanding was a reasonable interpretation -- indeed, the most natural interpretation -- of the Code and the Policy. See supra at ____.
   

9. •Although Mitchell claimed (falsely, see infra at ___), that he had spoken to Dr. Lacks about profanity in the student newspaper, he did not claim that he had disciplined anyone for that alleged profanity, or that he viewed such profanity as a violation of the Student Discipline Code. See supra at ___.
   

Finally, the press release issued by the School District when it fired Dr. Lacks says: "The style of teaching used by Ms. Lacks may have been fitting for 1970s students who were beginning to break free of a structural social system. It is however inappropriate in today's social climate." App. 1011. Ironically, it was in the 1970's that the Ferguson-Florissant School District adopted the student-centered method for teaching creative writing, Tr. 934; and if the Board subsequently has abandoned that method and the philosophy on which it is based, it certainly did not tell Dr. Lacks.

While the social climate may have changed over the course of the 25 years that Dr. Lacks served the School District, none of the Board policies involved here changed in any pertinent respect. It is one thing to ask teachers to conform their conduct according to the Board's policies and practices as reasonably understood, but quite another to ask teachers to predict how the Board will react to the ever-changing social climate. See Cohen v. San Bernardino Valley College, 92 F.3d 968, 972 (9th Cir. 1996) (where teacher is given to believe, based on his longstanding and open use of a particular teaching method, that the method is acceptable to the administration, the First Amendment prohibits the "nebulous outer reaches" of a policy to be invoked against a teacher without more particularized warning); Keefe, supra, 418 F.2d at 362-63 and n.10 (where anti-profanity policy was applied inconsistently or unpredictably, policy did not provide requisite notice); Webb v. Lake Mills Commn. Sch. Dist., 344 F. Supp. 791, 804-05 (N.D. Iowa 1972) (same).

On this record, the jury's finding of a lack of reasonable notice is unassailable.

2. The Jury's Finding that the Board Lacked a Legitimate Academic Interest for its Action Provides an Independent Ground for Sustaining the First Amendment Verdict

It is unnecessary for the Court to consider the additional ground on which the jury found a First Amendment violation, i.e., the finding that the District lacked a "legitimate academic interest" for its action. See supra at ___. For the sake of completeness, however, we will briefly show that that finding would provide a proper alternative ground for sustaining the verdict.

a. The Board does not dispute that the speech or expressive conduct of public school students and teachers cannot be made the subject of discipline unless the discipline is "reasonably related to legitimate pedagogical concerns." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (students); Ward v. Hickey, supra (teachers). The Board asserts, however, that this is a question for the court, not the jury. But none of the cases cited by the Board contains, or even suggests, such a holding. See cases cited in Bd. Br. 39. Hazelwood itself involved a bench trial, see 484 U.S. at 264, and there is no indication in the opinion that any party requested a trial by jury. However, the Court spent three pages analyzing in detail the record evidence as to the alleged justification for the challenged action of the school principal, see id. at 274-76, and the Court's treatment of the matter as fact-intensive is consistent with the proposition that it may be submitted to a jury.

That proposition is strongly supported by this Court's decision in McGee v. South Pemiscot School Dist. R.V., 712 F.2d 339 (8th Cir. 1983). Just as the First Amendment prohibits disciplining Dr. Lacks unless it is found that a legitimate academic interest was at stake, in McGee the First Amendment prohibited disciplining the plaintiff teacher unless his speech interfered with the school district's legitimate employment interest in harmony between teachers and supervisors. See, 712 F.2d at 342. This Court expressly held that "[i]t was for the jury to decide" that question. Id. (emphasis added). Cf. Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir. 1993), cert denied, 510 U.S. 1072, 114 S.Ct. 880 (1994) in (applying the balancing test of Pickering v. Board of Educ., 391 U.S. 563, 568 (1968), "the jury should decide factual questions such as the nature and substance of the plaintiff's speech activity . . ., and whether the speech created disharmony in the work place").

b. The jury's finding that the Board's action did not serve a legitimate academic interest is well grounded in the record. Dr. Lacks, her students, and expert witnesses testified that censoring the students' creative writing or disciplining them for their writing would only have stultified their willingness to write at all -- thus preventing the demonstrable progress that was made by students like Reginald. See supra at ___. Indeed, such censorship or discipline would have been inconsistent with the School District's own guidelines on student-centered teaching of creative writing. See supra at ___.

Finally, because, as the jury found, Dr. Lacks had not been put on notice that the Board wanted teachers to discipline students for profanity in their creative works, any legitimate academic interest on the part of the Board would have been satisfied by directing Dr. Lacks to apply such a mandate in the future. The Board's decision to terminate her served no legitimate academic purpose. Cf. Hazelwood, 484 U.S. at 276 (court undertook to determine, on the record evidence, whether the specific action taken by the principal -- "[his] decision to delete two pages of [the student newspaper], rather than to delete only the offending articles or to require that they be modified" -- was "reasonable under the circumstances as he understood them").

In sum, the verdict for Dr. Lacks on her First Amendment claim is properly sustained under either of the two alternative grounds found by the jury: the lack of reasonable notice and the lack of a legitimate academic reason for the Board's action.

IV. THERE WAS MORE THAN SUFFICIENT EVIDENCE TO SUSTAIN THE JURY'S VERDICT ON THE RACE DISCRIMINATION CLAIM

The Board begins its argument on the race discrimination claim by correctly pointing out that there are two basic routes to proving a case of discriminatory treatment under Title VII: The plaintiff may proceed through the "direct" route, see Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which is to adduce evidence that "directly reflects the use of an illegitimate criterion in the challenged decision," Stacks v. Southwestern Bell Yellow Pages, Inc., 996 F.2d 200, 202 (8th Cir. 1993) ("Stacks I"); or the plaintiff may make out a case through the indirect method of proof approved in McDonnell Douglas v. Green, 422 U.S. 792 (1973), and its progeny, which permits a trier of fact to infer discrimination from an employer's unexplained decision to reject the plaintiff in favor of a person of a different race or sex. See Ryther v. Kare 11, 108 F.3d 832, 836 (8th Cir. 1997) (en banc), cert denied, 117 S.Ct. 2510. The Board correctly notes that Dr. Lacks set out to prove discrimination by the direct, "Price Waterhouse," route.

After starting off with those unobjectionable observations, the Board quickly loses its way, making a series of statements about the applicable law that betray total confusion as to the proper analysis in a Title VII case.

A. First, the Board argues that "to permit proper review" on appeal, the district court should have made a "finding" as to whether Dr. Lacks was pursuing the "direct" or "indirect" method of proof. See Bd. Br. . That argument makes no sense. The Board did not ask for such a "finding," which is hardly surprising, as trial courts do not make "findings" in jury cases. Nor did the Board ask for an instruction to the jury distinguishing between the two modes of proof; indeed, the Board did not object in any way to the court's instruction on the race discrimination claim. See Tr. 2071-72.

Furthermore, the Board's contention that it was necessary for the district court to make a "finding" as to the plaintiff's mode of proof in order "to permit proper review," Bd. Br. , misconceives the nature of the review this Court is called upon to undertake on appeal. As the Court has explained: [O]ur task on appeal is limited as we will not assess the adequacy of a party's showing at any particular stage of the McDonnell Douglas or Price Waterhouse analyses. . . Instead, we focus our attention on the ultimate factual issue of whether [the employer] intentionally discriminated against [the employee], and we study the record to determine whether the evidence was sufficient to support submission of the case to the jury.

Kientzy v. McDonnell Douglas, 990 F.2d 1051, 1056 (8th Cir. 1993).

In addition, the Board's argument as to the supposed necessity of making a sharp distinction between "direct evidence/Price Waterhouse" cases and "indirect evidence/McDonnell Douglas cases" rests on a false dichotomy. The Board contends that the only way to prove discrimination by "direct" evidence is to produce a "concession by the [defendant] that the termination was motivated by race." Bd. Br. 49; see also id. at 48 (arguing that Dr. Lacks must lose because she is "unable to demonstrate that the District conceded that race was a discernible factor in the Board's decision to terminate")(emphasis added). The Board's theory is that once it is "found" that a plaintiff is proceeding under Price Waterhouse rather than under McDonnell Douglas, it becomes impermissible for the trier of fact to make "any inference[s]" whatsoever, Bd. Br. 47, 53, or indeed, to find for the plaintiff on the basis of anything other than an admission by the defendant.

That effort to artificially restrict the kinds of evidence that can support a finding of discrimination is untenable, and this Court rejected just such an argument in Stacks I:

We [reject the term "direct evidence"] in order to avoid the "thicket" created by some courts' use of the term "direct evidence" to describe the plaintiff's initial burden of proof in a Price Waterhouse case. See, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183-85 (2d Cir. 1992) (describing the use of the term "direct evidence" as unfortunate). We conclude that there is no restriction on the type of evidence a plaintiff may produce to demonstrate that an illegitimate criterion was a motivating factor in the challenged employment decision. The plaintiff need only present evidence, be it direct or circumstantial, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the challenged decision.

. . . [I]n Beshears v. Asbill, 930 F.2d 1348 (8th Cir. 1991) . . . [we held that] a statement by a decisionmaker "to the effect that older employees have problems adapting to new employment policies" [constituted] "direct evidence." Id. [at 1354]. In hornbook terms, this statement constitutes circumstantial evidence (in that it requires an inference from the statement proved to the conclusion intended) that a discriminatory motive played a motivating factor in the challenged decision. We believe that the term "direct evidence" as used in Beshears means only that the plaintiff must present evidence showing a specific link between discriminatory animus and the challenged decision.

Stacks I, 996 F.2d at 201 n.1 (emphasis added).

Thus, the Board's argument as to the absence of necessary "findings," and its effort to impose a requirement of proof-by-admission, must be rejected. The only question properly before this Court is "whether the evidence [of intentional discrimination] was sufficient to support submission of the case to the jury." Kientzy, 990 F.2d at 1056.

B. The answer to that question is plain: there was more than sufficient evidence.

1. To begin with, Principal Mitchell admitted that upon seeing the videotape in question here, he reacted in racial terms: he saw "black folks acting a fool and white folks videotaping it." Tr. 1392-93. Not only that, but Mitchell made the quoted statement to a student to explain what he (Mitchell) saw as "offen[sive]" in Dr. Lacks' conduct. Id. See also Tr. 1426. And what "offended" him, Tr. 1393, was not profanity, as such, but the fact that "white folks" were videotaping the "very bad stereotype of black people" that he discerned in the students' works. Id.

The Board goes to unconscionable lengths in its brief to mislead the Court concerning Mitchell's statement. The Board suggests that it is not clear whether Mitchell even made such a statement, see Bd. Br. , but at trial he admitted to having made the statement; indeed, he was confronted at trial with an audiotape, provided by the District, of the interview in which he made the statement. See Tr. 1392. Even more egregiously, the Board baldly asserts -- not once but twice -- that Mitchell's statement "did not refer to Dr. Lacks' race." Bd. Br. 50. See also id. at 51 ("Mitchell's alleged statement is unrelated to Lacks' race"). In an effort to slip that contention past the Court, the Board quotes Mitchell as saying only that he saw "black folks acting a fool." Id. at 50. But what Mitchell admitted he really said was that he saw "black folks acting a fool and white folks videotaping it." Tr. 1392-93.

Nor can Mitchell's statement about "black folks acting a fool and white folks videotaping it" be dismissed as a mere "stray remark." Bd. Br. 49. Mitchells' statement is a statement about the very incident that led to the decision to take action against Dr. Lacks; it is a statement by a person who, as school principal, exercised significant authority in the decisionmaking process that led to Dr. Lacks' termination; and it is a statement as to why that administrator wished to take action.

Nor is Mitchell's statement the only evidence of racial bias on his part. As we have recounted, Mitchell took no action against an African-American teacher who supervised the production of a student-written play that contained profanity -- including the word "fucking" -- and that depicted gang violence and sexually suggestive dancing as well. See supra at . Nor did Mitchell discipline either the teacher or the student when an African-American substitute teacher presented Louis Farrakhan recruitment tapes to students in Dr. Lacks' English class, accompanied by anti-semitic remarks directed by the substitute at Dr. Lacks, and a student responded to those tapes by writing a hate-filled essay in which, in the space of one paragraph, he expressed a desire to kill any Jew that touched him and in which he used such profanity as "chink," "cracker," and "honkey." See supra at .

Mitchell also was shown to have made racist remarks in the past, and several teachers had complained of Mitchell's prejudice against white teachers. See supra at ____.

The jury also could have found evidence of Mitchell's animus against Dr. Lacks in the fact that he testified before the School Board that Dr. Lacks allowed the words "fuck" and "shit" to appear in the first issue of the school newspaper, Tr. 1362, when that statement was demonstrably false. If, as the jury reasonably could infer, Mitchell was willing to lie to the Board in order to bolster the case against Dr. Lacks, that plainly would indicate that Mitchell was not merely a disinterested and impartial enforcer of the Student Discipline Code but someone who was acting with an improper motive. See Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994) (evidence that supervisors "lied or exaggerated" in their reports to their superiors about employee's misconduct supports an inference of discrimination).

Not only was there evidence that Mitchell unfairly stereotyped Dr. Lacks because of her race, there also was evidence that Dr. Wright, the Assistant Superintendent for Personnel, did the same thing. See supra at .

2. The Board argues that the extensive evidence of racial animus on the part of Mitchell and Wright cannot support the verdict because it does not establish a discriminatory motive on the Board's part. This argument is inconsistent with controlling decisions of this Court.

In Kientzy, supra, the plaintiff committed a violation of company policy which was reported by her immediate supervisor to his supervisor, O'Gorman. O'Gorman in turn reported the plaintiff to a company investigator, who then reported the plaintiff to the company's disciplinary committee. That committee, which consisted of individuals outside either the plaintiff's or O'Gorman's chain of command, and which the plaintiff conceded was entirely free of discriminatory animus, found that violations had occurred and that the plaintiff should be terminated. The plaintiff, however, introduced evidence that O'Gorman had not reported male employees who had committed similar offenses. The jury found for the plaintiff on her claim of discrimination, and the employer argued on appeal that the jury verdict could not stand because there was no "direct evidence of discriminatory animus on the part of any key player in the events leading to plaintiff's discharge." 990 F.2d at 1059.

This Court disagreed, holding that it is sufficient for a plaintiff to show discrimination on the part of a supervisor who played a role in the process by which a charge was brought before the employer's decisionmaking body. Id. at 1060. The teaching of Kientzy is clear: it does not matter whether an employer's highest disciplinary body acts free of racial animosity when it makes a determination to discipline an employee, if the charges against the employee were initiated or pursued by a supervisor acting with a discriminatory motive.

The Board asserts that the holding of Kientzy and of other cases finding Title VII liability on similar facts, see, e,g,, Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994) ("Stacks II"); Jiles v. Ingram, 944 F.2d 409 (8th Cir. 1991), does not apply when the employee is a tenured teacher who has "due process . . . protection against arbitrary employment decisions," in the form of the "opportunity to cross-examine witnesses" and other procedural protections. Bd. Br. 57-58. But such a limitation is neither expressed in the cases nor suggested by their logic. To the contrary, in Kientzy, the court specifically noted that the disciplinary committee was independent, and the court did not suggest that the committee's procedures were not fair.

Furthermore, in this case there is evidence that the racial animus of Mitchell and Wright played a role not only in bringing the charges to the Board, but in the Board's ultimate decision. In its "Findings of Fact," the only evidence the Board cited for the proposition that Dr. Lacks had received any warnings about students' use of profanity was that "[d]uring the 1993/94 school year, [Dr. Lacks] had been expressly cautioned on several occasions by her building principal, Vernon L. Mitchell, that [she] should desist from permitting student written articles containing profanity from appearing in the Berkeley student newspaper." App. 904. That finding by the Board was based solely on Mitchell's testimony, and as we have seen, that testimony by Mitchell was a lie, which the jury properly could view as stemming from his racial animus. Through the Board's reliance on Mitchell's testimony, racial animus infected the Board's decision. See Crawford v. Runyon, 37 F.3d at 1341 ("[S]ince both the opinion of the Postal Services medical officer and the decision to remove plaintiff were based on [exaggerated] reports [of misconduct by employee's supervisor], both would be tainted by any discriminatory motive behind the supervisors' alleged lies.")

What is more, just as the disciplinary process against Dr. Lacks began with Mitchell's concern (reflected in his testimony in the Board hearing, Hrg. Tr. 219-20) about "white folks" videotaping "black folks acting a fool," the process ended with the Board's issuance of a press release declaring that "[t]he content of the video is a violation of our black community." App. 1008-09. To be sure, the Board coupled that assertion with the statement that the video also was "a violation of our white community." Id. But that statement reads like an exercise in track-covering (or so the jury reasonably could have inferred); and what the Board cannot explain is why it had race on its mind in the first place, and why it saw fit to refer, however coyly, to race in the press release it issued to its constituents -- a few months before the next Board election -- when it set out to claim credit for having fired Dr. Lacks.

The jury's findings on Dr. Lacks' discrimination claim are rationally rooted in the evidence and must be sustained.

V. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE SCHOOL DISTRICT'S REQUEST FOR A REMITTITUR OF THE JURY'S AWARD OF DAMAGES OR FOR A NEW TRIAL ON DAMAGES

As its final asserted ground for reversal, the Board argues that the $750,000 in damages awarded by the jury is "excessive" and that this Court should remand the case to the district court with instructions either to enter a remittitur or to conduct a new trial on damages. Board Br. __. Those contentions are baseless.

The principles governing appellate review of damages awards are well established: "Review of a verdict for excessiveness is generally an issue for the trial court. An appellate court should review the award only when the amount creates plain injustice or a monstrous or shocking result." Cunningham v. City of Overland, 804 F.2d 1066, 1069 (8th Cir. 1992) (emphasis added).

The reason for this extraordinarily deferential standard has been explained by this Court time and again:

[I]nadequacy or excessiveness of a verdict . . . should be a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and which knows the community and its standards.

Taken Alive v. Litzau, 551 F.2d 196, 198 (8th Cir. 1977) (quoting Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-48 (8th Cir. 1961) (Blackmun, J.)). See also Kim v. Nash Finch Co., ___ F.3d ___, 1997 WL 471351, *20 (8th Cir. Aug. 20, 1997) (district court's decision whether to grant remittitur is reviewed only for "clear abuse of discretion.")

What is more, an appellate court should be especially hesitant to overturn a jury verdict that, like the one here, includes damages for pain and suffering: [I]n the somewhat elusive area of pain and suffering, we must expect substantial disparities among juries as to what constitutes adequate compensation for certain types of pain and suffering. This is a litigious fact of life of which counsel, clients, and insurance carriers are fully aware. Once they place their fate in the hands of a jury, then they should be prepared for the result, whether the award be considered generously high or penuriously low.

Taken Alive, 551 F.2d at 198 (internal quotations omitted). Determining damages to reputation is likewise an area in which juries are afforded especially wide discretion. See Keenan v. Computer Associates, 13 F.3d 1266, 1273-74 (8th Cir. 1994).

The jury's damage award in this case is hardly "monstrous," "shocking" or "a plain injustice." As Dr. Lacks testified, the termination proceedings against her led to months of harassing phone calls, sleepless nights, anxiety, weight gain, and loss of the creative energy that had propelled her endeavors as a photographic artist whose works were exhibited in art galleries. See supra at __. Despite her stellar credentials and her 25-year record of outstanding achievement as an educator, she not only was unable to obtain interviews for all but one of the over 40 teaching jobs for which she applied, but she encountered hostile and humiliating questions about her status as a "hot potato" in the one interview she did manage to obtain. See supra at __. And she no longer was able to serve, as she had in the past, as a facilitator of Jewish/African-American relations in her community. See supra at __.

Although, as the Board states, Dr. Lacks did not attempt to quantify these damages, she was not required to do so. Indeed, as this Court noted in Taken Alive, "[t]here is no precise or exact measuring stick for calculating general damages for pain and suffering," 551 F.2d at 198; and the same is true of damages to reputation and standing in the community.

Nor is the Board correct in its contention that a plaintiff's own testimony cannot suffice to prove such damages. See Bd. Br. 61-62. In Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1273 (8th Cir. 1981), this Court squarely held that "the plaintiff's own testimony may be solely sufficient to establish humiliation or mental distress." See also Kim, 1997 WL 471351, *16 (citing Williams with approval on this point); Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir. 1985) (upholding plaintiff's recovery for emotional distress resulting from a § 1983 violation, notwithstanding that the evidence of distress came solely from the plaintiff's own testimony).

The Board cites the Supreme Court's decision in Carey v. Piphus, supra, for the proposition that "Lacks bears a greater burden in establishing alleged emotional distress damages than presenting her own testimony." Bd. Br. 62. But this Court's post- Carey decisions in Williams and Kim cannot be squared with that proposition, and one searches Carey in vain for support for the Board's interpretation. See Bolden v. Southeastern Pa. Trans. Auth., 21 F.3d 29, 34, 36 (3rd Cir. 1994) (explaining Carey and holding that "we see no reason to require that a specific type of evidence be introduced to demonstrate an injury in the form of emotional distress").

In Carey, the plaintiff students acknowledged that they presented no evidence of injury whatsoever, and they argued that such evidence should not be required in procedural due process cases because proving injury would be unduly difficult. 435 U.S. at 254, 263-64. The Supreme Court disagreed, noting that emotional distress is a personal injury "familiar to the law, customarily proved by showing the nature and circumstances of the wrong and its effect on the plaintiff." Id. at 263-64. Here, Dr. Lacks proved the "nature and circumstances of the [Board's] wrong and its effect on [her]." Carey does not require more.

Finally, the Board is off base in comparing this case to People's Bank and Trust Co. v. Globe International Publishing, Inc., 978 F.2d 1065 (8th Cir. 1992). See Bd. Br. 62-63. In that case a jury awarded the plaintiff $650,000 in damages where the only evidence of injury was that the plaintiff "avoid[ed] other people for a few days and [experienced] a temporary loss of a certain blithe cheerfulness." Id at 1071. This case simply is not comparable.

In sum, the district court did not abuse its discretion in denying the Board's request for a remittitur.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be affirmed.

Respectfully submitted,

JEREMIAH A. COLLINS

LEON DAYAN

Bredhoff & Kaiser, P.L.L.C.

1000 Connecticut Avenue, N.W.

Suite 1300

Washington, D.C. 20036

(202) 833-9340

Lisa S. Van Amburg, Esq.

Van Amburg, Chackes, Carlson & Spritzer

8420 Delmar Blvd., Suite 406

St. Louis, Missouri 63124

Counsel for Plaintiff-Appellee Cecilia Lacks

Appellant conflates the two separate records generated in this matter, citing portions of the trial record in its argument on the state-law claim, and citing portions of the record of the School Board proceedings in its argument on the federal claims. See, e.g., Bd. Br. 23, 26, 27, 28, 30, 32, 34, 53. This is improper. The trial record was not before the Board or the district court when the state-law issue was resolved, and except for a few portions that were read into the trial record, the record of the Board proceedings was not before the jury when it resolved the federal claims. We cite to the trial transcript as "Tr." and to the transcript of the Board proceedings as "Hrg. Tr."

Expert witnesses made the same point. See, e.g., Tr. 1106, 1114-18 (testimony of Miles Myers, the Executive Director of the National Council for Teachers of English, that censoring profane language from students' work can "shut down" the students' willingness to engage in creative writing). Furthermore, in the 1994-95 school year -- the year in which Dr. Lacks was terminated -- she had notified Principal Mitchell and all of her students' parents that she intended to show her eleventh grade English class the film Boyz in the Hood, which contains a great deal of profanity. Tr. 332, 329-30, 334-36. 721-22, 940. Principal Vernon Mitchell, who was aware that Boyz in the Hood contained profanity, did not object, nor did any parent. Tr. 722.

Dolores Graham, a District administrator, who served as a principal in the District for more than eleven years and as an assistant principal for longer, provided similar testimony:

Q. Is there a policy, to your knowledge, in the Ferguson Florissant School District that prohibits a teacher from allowing in the classroom a student to include profanity in their creative works?

A. I am not aware of any policy. I am aware of a policy that if a child would use profanity which disrupts the instructional program, there is a policy for that.

Q. Would you consider that policy, in all the years that you have been an administrator in the District, do you consider the policy you just referred to be applicable to a creative writing assignment in a classroom?

A. No, it's not the same. The one I just described for you is a disciplinary policy. [Tr. 1098-99].

The word "profanity" is not defined in the Student Discipline Code. In its brief, however, the School Board terms the word "nigger" a profanity and counts the frequent uses of the word by Dr. Lacks' African-American students in the videotaped drama exercise at issue here as constituting a significant portion of the "165 [uses] of . . . profane words" in the video. Bd. Br. 22 n.9. If the Board's categorization is correct (and we do not quarrel with it here), the words "chink," "honkey," and "monkey cracker" also must be "profane," particularly when used to belittle someone of a different race or ethnicity. Sherry Goldhersh of Young Playwrights, a not-for-profit organization that teaches play-writing across the country to students in grades two through twelve and that also trains teachers, characterized the language in the videotaped drama exercises as follows:

Entirely main stream. There was nothing surprising in that. The language was appropriate for the characters, and this is language that we have seen in classrooms across the country. [Tr. 1181]

Ms. Goldhersh added that it was evident that the students had taken the assignment seriously. Tr. 1180.

The portion of the transcript of the hearing cited above was read into the record at trial. See Plaintiff's Depositions/ Hearing Testimonies Read at Trial, Dist. Ct. Dkt. No. 130.

Although the Board never asserted this position until appeal, it contends that the jurisdictional argument it now advances is compelled by Supreme Court decisions rendered in the 1950's and 60's and by court of appeals decisions going back to the early 1970's. See Bd. Br. 16, 18-19. Even the most recent case cited by the Board -- which the Board describes as merely the latest in a long line of cases -- was decided more than three months before trial began. See International College of Surgeons v. City of Chicago, 91 F.3d 981 (7th Cir. 1996), cert. granted, 117 S.Ct. 1424 (1997).

See also Carrington v. Mahan, 51 F.3d 106 (8th Cir. 1995) (court reached merits of all claims in an appeal procedurally identical to this one, without questioning its subject matter jurisdiction to do so).

Of the three cases cited by the Board that contain any analysis of this issue, two involved situations where the state-law claim was the only claim presented, so the question of supplemental jurisdiction did not arise. See Fairfax County Redevelopment & Hous. Auth. v. W.M. Schlosser Co., 64 F.3d 155 (4th Cir. 1995); Armistead v. C&M Transp., 49 F.3d 43 (1st Cir. 1995). In the third case, College of Surgeons, federal claims were pleaded, but the court did not mention supplemental jurisdiction. That oversight appears to have resulted from two distinct errors in the Seventh Circuit's analysis. First, ignoring the teaching of Caterpillar and Grubbs, the court failed to consider whether the College's claims would have been within the district court's jurisdiction had the case been filed in federal court; instead, the court confined its analysis to the removal statute. Second, the court appears to have read that statute as allowing removal only where the district court would have original jurisdiction over each claim in a case. See 91 F.3d at 994. But that view cannot be squared with the language of the statute, see 28 U.S.C. § 1441(a), (c), nor can it be squared with the well-established caselaw allowing removal of claims that are within the federal court's supplemental jurisdiction.

The Board suggests that the panel is free to depart from Range Oil because that case was decided before Horton v. Liberty Mut. Ins. Co., 367 U.S. 348 (1961). See Bd. Br. 18 n.8. But Horton sustained federal jurisdiction, and in so doing the Court did not announce any new principle of law, but simply discussed its earlier decision in Chicago, Rock Island & Pacific RR v. Stude, 346 U.S. 574 (1954), which had been rendered prior to Range Oil and was cited by this Court in that case.

Nor did this Court misconstrue Stude when it decided Range Oil. Although the Supreme Court held in Stude that an action filed in federal court to appeal the decision of a state commerce commission in a condemnation proceeding was properly dismissed, the jurisdictional problem perceived by the Court was that the suit had not been "brought . . . by the person injured," id. at 580, and that it did not contain any prayer for damages; and the nominal plaintiff (actually the defendant) was attempting to "separate the question of damages and try it apart from the substantive right from which the claim for damages arose." Id. at 582. What is more, the Court held in Stude that an appeal of the commission's order that had been filed in state court was "subject to removal by the defendant to the United States District Court." Id. at 578-79.

"Unless a statute provides otherwise, persons seeking review of agency action go first to district court rather than to a court of appeals." International Brotherhood of Teamsters v. Pena, 17 F.3d 1478, 1481 (D.C. Cir. 1994).

The District does not dispute that proposition. See Bd. Br. 25. The statute allows termination for "willful or persistent" violation of a regulation, Mo. Stat. § 168.114.1(4), and in the "Conclusions of Law" issued by the Board when it terminated Dr. Lacks, the Board characterized Dr. Lacks' alleged violation as "willful or persistent," without saying which of those two adjectives was applicable. App. 904-05, ¶¶ 16, 21. In its brief the Board hangs its hat on the "willful" prong; and the "persistent" prong clearly is not applicable here. Under Missouri caselaw, a violation cannot be deemed "persistent" merely because a teacher engaged in conduct violative of a regulation on more than one occasion; rather, it must be shown that the teacher continued to violate the regulation after "opposition" -- i.e., after having been told that his or her conduct was unacceptable. See, e.g., Board of Educ. Mt. Vernon Schools v. Shank, 542 S.W.2d 779, 782 (Mo. 1976). With regard to the meaning of "persistent," see supra note 14.

In a futile attempt to diminish the impact of Ms. Price's testimony, the Board falsely asserts in its brief -- three times -- that Ms. Price was "Lacks' own expert." Bd. Br. 8, 23, 35. But Ms. Price was not called at the hearing (or at the trial) as an expert witness; she was called because of her position as Chairman of the Berkeley English Department and because the District itself had consulted Ms. Price in the course of its investigation.

The play, videotapes of which were admitted into evidence at the hearing (Hrg. Exhs. 40, 41), in fact contains the word "fucking" as well, and it also includes highly sexually suggestive dancing and vivid dramatizations of gang violence, including depictions of gun play and gunfire using realistic-looking guns.

The District Court could have added as well that the profanity-laced film Boyz in the Hood was part of the approved curriculum at Berkeley. Hrg. Tr. 632, 151. Moreover, it was undisputed that Dr. Lacks herself brought Reginald's first two poems (the ones containing a great deal of profanity, see supra at 6) to the attention of school authorities, see supra 16; and that voluntary action on her part is wholly inconsistent with any contention that she believed it was a violation of Board policy for her to have permitted profanity in student creative works. See Misouri Church of Scientology v. State Tax Comm'n, 560 S.W. 2d 837, 843 (Mo. 1977) (when agency disregards testimony, it must make a specific finding on credibility and offer an explanation); see also Gamble v. Hoffman, supra, 695 S.W. 2d at 506-07.

Numerous witnesses at trial testified to the same effect. See supra at 9-11.

Furthermore, although the Board professes that Dr. Lacks should have recognized a line beyond which the use of profanity in creative writing should render a student subject to discipline, no such line exists in any Board policy or in reality. How much profanity should be allowed, for example, if a student is depicting a drunk, or a tyrant, or a wife-beater, or a gang member -- or, for that matter, depicting a teenager using speech which, whatever else one might say of it, is familiar in many teenage circles? See supra at 13-14 and note 7. Cf. Tr. 967-68 (Mitchell approved the use of a book to which a member of the community had objected which contained a statement "talking about Christ's rear," because the statement was made by a character who was depicted as drunk). Given the complexity of such judgments, and the fact that the Student Discipline Code as written provides no guidance as to how to make them, it is entirely understandable that teachers did not think they were supposed to apply that Code to student writings.

The Board argues that Burgess v. Ferguson Reorganized Sch. Dist., 820 S.W. 2d 651 (Mo. App. 1991), and Ortbals v. Special Sch. D., 762 S.W. 2d 437 (Mo. App. 1988) stand for the proposition that, in cases where a teacher admits having read the school board's policy manual upon signing her contract, any conduct of the teacher that is later found to violate any policy must, without more, be considered "willful." Bd. Br. 25. But Burgess and Ortbals do not remotely stand for that proposition. In both cases, the teachers admitted they were aware that the board's policy applied to prohibit the very conduct for which they were charged. Thus, in Burgess, the teacher left several of her second grade students unattended in the classroom for seventeen minutes, during which time a sexual assault occurred in the classroom. The teacher admitted that she knew prior to the incident in question that the board policy prohibited her from leaving her students unattended for more than a few minutes. 820 S.W. 2d at 657. Ortbals is even further afield. There, the teacher, charged with administering corporal punishment in violation of school policy on a particular occasion, admitted that she knew corporal punishment was not permitted, 762 S.W.2d at 440, and defended herself solely on the basis that the alleged incident did not occur. Id. at 438.

Although the brief states in misleadingly broad language that "Mitchell testified that he had warned Lacks about the use of profanity by students," Bd. Br. 7, and that "Lacks received warnings regarding her students' use of profanity in their works," id. at 29, the testimony cited refers only to the student newspaper, and neither Mitchell nor any other witness claimed that Dr. Lacks had been warned about students' use of profanity in any other context.

The District states that "Karen Price, one of Lacks' colleagues, testified that after hearing Reginald's first poem read aloud to the class, Lacks was on notice that his second poem might be as offensive and inappropriate and thus should not have been read to the class." Bd. Br. 26, citing Tr. 992-93. That trial testimony is not part of the record that was before the Board. But, in any case, Ms. Price did not testify at trial that any of Reginald's poems "should not have been read to the class." See Tr. 992-93. Furthermore, in the testimony cited by the District, Ms. Price was describing what she personally would regard as a good educational procedure, not what she thought was required by Board Policy 3043 or by the Student Discipline Code. She specifically testified that -- at least until the hearing in Dr. Lacks' case -- her understanding was that those policies did not apply to creative writing. Tr. 964-65.

That same issue also contained the words "d@#*" and "thang" in a quotation from a student interviewee. The interviewee was asked, "What would you leave to underclassmen [upon graduating]," and he answered, "I'd leave them not a d@#* thang, no, I'll leave them my wardrobe because some of them are terrible dressers." App. 386. The Board asserts that "thang," and "d@#*" constituted "profanity," Bd. Br.8, but if that is the case, then Mitchell not only failed to discipline the student who used that "profanity," he also failed to discipline the students who, while performing the play "How Ya Livin'" under the supervision of teacher Sharita Kyles, used the word "thang" in a sexual context and uttered the phrase, "I'll blow your damn head off" in a scene depicting gang violence. Hrg. Exh. 40.

It also bears mentioning that, although the District makes much ado about Mitchell's discussion with Lacks and her journalism students regarding the appearance of the phrase "hitting the skins" in a draft of a subsequent issue of the school newspaper, those discussions took place on or about December 23, 1994, which was when that draft was submitted to Mitchell for his approval. Hrg. Tr. 183. The question in this case is what Dr. Lacks understood about school policy at the time of the drama exercises for which she was terminated -- October 1994 -- not what Mitchell may have told her on that subject more than two months later.

The Policy provides, inter alia:

Faculty advisers will monitor style, grammar, format, and appropriateness of materials. Students will be directed by faculty advisers to judge literary value, newsworthiness, propriety, and to . . . edit material considered obscene, libelous . . . or apt to incite students [to violate school rules]. As the designee of the Board of Education, the principal is responsible . . . [for] render[ing] prompt decisions to the student editors and adviser when conflicts occur on the appropriateness of material. [App. 513-14.] The Board was presented with testimony contrary to Mitchell's on this subject. Dr. Lacks testified that prior to the charges against her, she had not been warned in any way about profanity in the school newspaper. Hrg. Tr. 413-15. That testimony was supported by the fact that there was no written warning, Hrg. Tr. 175, and Mitchell admitted that his usual practice was to put reprimands in writing, id. At trial, it became all the more evident that Mitchell's testimony about profanity in the newspaper was untrue. See infra at 57. See Bd. Br. 32-33. Id. at 33-34. Id. at 35.

What is more, even a work that does appeal to the prurient interest cannot be found obscene unless, "taken as a whole, [it] lacks serious literary, artistic, political, or scientific value." 413 U.S. at 24. Id. In the context of student works, this test should protect creative writing which, although containing extensive profanity, constitutes a sincere attempt to create an expressive work. Here, the students were making a sincere attempt at creative writing, however short of the ideal they may have fallen. See Tr. 1180.

See Kingsville Indep. Sch. Dist. v. Cooper, supra (teacher's use of role-playing as an instructional method was entitled to First Amendment protection); Dean v. Timpson Indep. Sch. Dist., 486 F. Supp. 302, 307 (E.D. Tex 1979) (although the right can be outweighed by countervailing government interests, "a teacher has a constitutional right protected by the First Amendment to engage in a teaching method of his or her own choosing"); Mailloux v. Kiley, 323 F. Supp. 1387, 1392 (D. Mass 1971) (Wyzanski, J.) (teacher's use of a "teaching method . . . [that] serv[es] a serious educational purpose, and was used by [teacher] in good faith" enjoys limited First Amendment protection) (internal quotations omitted); Watson v. Eagle County School Dist., 797 P.2d 768, 770 (Colo. App. 1990) ("a teacher's interest in choosing a particular pedagogical method for a course" is a protected by the First Amendment).

Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), upon which the Board relies, is not to the contrary. In Dambrot, a basketball coach alleged that it was a First Amendment violation for the university to terminate him for calling his players "niggers" as an (alleged) means of motivating them to improve their basketball skills. The case did not involve censorship of student speech, nor did it involve the classroom as a forum for student creativity; thus it had nothing in common with this case. Nor is Hetrick v. Martin, 480 F.2d 705 (6th Cir. 1973), also cited by the Board, on point. As the Hetrick court emphasized, that case did not involve "a [school board's] effort to restrict in-class utterances." 480 F.2d at 709. Rather, Hetrick found no First Amendment protection for a teacher's insistence on teaching at a level that was over her students' heads, in defiance of the school board's judgment that the students needed a "basics" approach. See id. at 706 (describing students' complaints that they could not comprehend what the teacher was teaching); id. at 707 (describing the administration's desire to stress "fundamentals" because of the student's "restrictive backgrounds").

Defendant's Motion for and Suggestions In Support of Judgment As a Matter of Law, at 19. (That motion appears in Appellant's Appendix beginning at 305, but the Appendix omits page 19.)

Defendants' Motion for Judgment as a Matter of Law on Counts I, III, IV and V and Motion for New Trial and/or Amendment of Judgment on Counts III, IV and V, at 3, ¶ 2.

We note that even if (contrary to proper analysis) the Board were deemed semantically correct in asserting that the court below mislabeled Dr. Lacks' notice theory as a "First Amendment theory" rather than a "Due Process theory with First Amendment overtones," the District could claim only a Pyrrhic victory. The ultimate result here would not differ by one iota, because Dr. Lacks was a tenured teacher with a property interest in her employment.

The Board seeks to avoid this deferential standard of review by relying on Hurley and Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) for the proposition that "[appellate] review of petitioners' claim that their activity is indeed in the nature of protected speech carries with it a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court." Hurley, 115 S. Ct. at 2344 § 44 (citing Bose). But every appellate court that has directly confronted the issue has held that that heightened standard of review applies only where, as in Hurley and Bose themselves, the finder of fact had found the speech at issue to be unprotected. See Multimedia Pub. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 160 (4th Cir. 1993)("The Bose requirement of independent review doesn't apply to the Commission's claim that it has been wrongly prevented from restricting speech . . . . The requirement is rested upon special solicitude for claims that the protections afforded by the First Amendment have been unduly abridged, requiring appellate courts 'to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression'") (quoting Bose, 466 U.S. at 499) (other internal quotations omitted); Daily Herald Co. v. Munro, 838 F.2d 380, 83 (9th Cir. 1988) (same); Planned Parenthood Ass'n/Chicago Transit Auth., 767 F.2d 1225, 1229 (7th Cir. 1983).

In cases where the balancing process described in Pickering must be employed, drawing the balance is ultimately a question of law, see Shands, 993 F.2d at 1342; and in undertaking such balancing "[t]he trial court should . . . combine the jury's factual findings with its legal conclusions in determining whether the plaintiff's speech is protected." Id. at 1342-43. It is "error" for "the trial court [to] disregard[] the jury's findings in balancing the factors under Pickering. . . . While the ultimate decision is one of law, the court must defer to factual findings [of the jury] unless they are totally unsupported by the record." Lewis v. Harrison School Dist. No. 1, 805 F.2d 310, 315 (8th Cir. 1986), cert denied, 482 U.S. 905, 107 S.Ct. 2481 (1987). At the trial of this case, neither party took the position that the district court should ask the jury to make findings which the court then would factor into a balancing test. There was no call for such an approach because, unlike Shands and Lewis, this case does not involve the application of a balancing test; it simply involves a determination as to whether the Board's action is supported by a legitimate academic interest. As Hazelwood indicates, this is a factual question; and, as in McGee, it is a matter for the jury to decide. See also Miller v. California, supra, 413 U.S. at 30-34 (determination whether a writing is obscene for First Amendment purposes is essentially a factual matter, and is for a jury to decide).

See, e.g., Tr. 352 (Lacks); Tr. 1013-14 (Reginald); Tr. 1118 (Myers).

The Board's argument that a school always has the right to "disassociate itself" from profane speech, Bd. Br. 42-43, is off point for two reasons. Unlike Hazelwood and Fraser, which involved, respectively, a school newspaper and a school assembly, there was no danger in this case that the classroom works of Dr. Lacks' students would be "erroneously attributed to the school." Hazelwood, 484 U.S. at 271. And in Hazelwood and Fraser, there was no contention that the censorship at issue might actually undermine the school's educational mission, while in this case, there was extensive evidence that censoring the student works or disciplining the authors would present just that problem, because it would be likely to induce the students to abandon all efforts at creative writing. Thus the Board's "disassociation" argument does not speak to the facts of this case.

The Court's decision in Stacks I, supra, on which the Board relies, is not to the contrary. In the first place, Stacks was not tried to a jury. Secondly, the problem in Stacks was that the district court, in declaring that it found in favor of the employer, failed to indicate whether it had reached that result because the plaintiff had not proved that race was a motivating factor, or because the court had concluded that the employer acted with mixed motives but that the employer proved that it would have made the same decision in the absence of any racial motivation. See Stacks I, 996 F.2d at . Here, unlike Stacks, the jury explicitly found for Dr. Lacks on both of those questions, after having been given instructions to which the Board did not object. See App. 913 (instruction); App. 339 (verdict).

To the extent that the Board's argument finds any support in the Eleventh Circuit's decision in Carter v. City of Miami, 870 F.2d 578 (11th Cir. 1989) -- a case decided four years before Stacks -- this simply illustrates why the Stacks Court chose to distance itself from courts that had created a "thicket" through their narrow use of the term "direct evidence".

Assistant Superintendent Davis testified that Mitchell was directly involved in the decision to charge Dr. Lacks, and that Mitchell recommended Dr. Lacks' termination. See supra at ____. In these circumstances, Mitchell's statement cannot be dismissed as a "stray remark."

For a comment to be considered the sort of "stray remark" that is insufficient, standing alone, to constitute proof of discriminatory animus, the statement must either be made by a person wholly uninvolved in the decisionmaking process, or it must be about a matter that is wholly unrelated to that process. See Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1323-24 (8th Cir. 1994) ("Stacks II") (sexist statements made by person who was not a final decisionmaker but who, as supervisor of plaintiff, played a role in disciplinary actions taken against plaintiff were not mere "stray remarks"); cf. Kientzy, 790 F.2d at 1060 (the role of plaintiff's supervisor in reporting plaintiff's violation of company policy to the supervisor's superiors was sufficient to render him a decisionmaker, even though he did not make the ultimate decision as to whether plaintiff would be disciplined); and see Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir. 1993) (statements made in corporate documents expressing a bias in favor of youth, although "not directly related" to the employment decision in question, were nevertheless sufficiently relevant to the question of age-based animus so as not to constitute "stray remarks.")

At trial, counsel for Dr. Lacks was able to confront Mitchell with that issue, and Mitchell had to admit that those words were not in the paper. Tr. 1363. Mitchell's mendacity continued at trial when he testified: "One of the newspapers, and I thought it was the first issue, did have those words in it, and that's what I was responding to." Id. All of the newspapers are in the record, and one reads them in vain for the word "fuck" or "shit." App. 364-454.

There was evidence in Kientzy that discriminatory animus not only motivated the decision to report the plaintiff, but motivated as well a post-termination investigation into whether the plaintiff had unfairly been singled out. The Kientzy court made it clear, however, that the evidence pertaining to the decision to report the plaintiff was, in and of itself, sufficient to sustain the verdict. See 990 F.2d 1060 ("the evidence is sufficient for the jury to have made its discrimination finding based on either O'Gorman's referral of Kientzy to security investigations or his failure to [conduct a proper post-termination investigation], or both").

Pursuant to a stipulation of the parties, the matter of the proper amount of Dr. Lacks' back pay was decided by the District Court, which awarded $76,080. The jury was specifically instructed not to award damages for past or future lost wages or benefits, but only to award damages for "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional reputation, and other nonpecuniary losses." App. 912, 915. The Board did not object to this instruction. App. 2069-2072.

The Court in Carey stated in a footnote that juries could distinguish "genuine" claims of emotional distress from baseless claims because, "[a]lthough essentially subjective, genuine injury may be evidenced by one's conduct and observed by others." 435 U.S. at 264 n. 20. The Board here (after changing the word "and" in the above-quoted sentence to "as") argues that, according to this footnote, a plaintiff may recover for emotional distress only if she shows either "specific manifestations" of her emotional injuries or "observations" of others. Board Br. 62. But no such requirement is imposed by the Carey footnote. The footnote simply suggests ways that claims of emotional injury may be impeached through evidence that the plaintiff's outward conduct did not change after the defendant's wrongful conduct. The Court did not suggest that a plaintiff, as part of her affirmative case, must prove that her emotional injuries caused an observable change in her outward conduct. In any event, Dr. Lacks did testify that her outward conduct and appearance changed in that she began overeating and gaining weight upon her termination, and that she lost her motivation to pursue endeavors such as her photography. That testimony was uncontradicted and unimpeached.

Nor is there any merit to the Board's alternative request for "a [new] hearing on damages." Bd. Br. 59. The Board itself notes that a district court has very broad discretion as to whether to require a new trial on damages because of the alleged excessiveness of the verdict. See Bd. Br. 64 and cases cited thereat. For the reasons already discussed, the court did not abuse its discretion in declining to order a new trial on damages.