Teacher fired for failing to censor students' work asks appeals court to reconsider

By David Hudson
First Amendment Center


Attorneys for a St. Louis public high school teacher, fired for failing to censor her students' written work, filed a petition today asking the U.S. Court of Appeals for the 8th Circuit to reconsider its decision in favor of the school district.

On June 22, the appeals court in Lacks v. Ferguson Reorganized School District R-2 reversed a $750,000 decision by a jury in favor of Cecilia Lacks, an English and journalism teacher at Berkeley High School.

The appeals court ruled that "a school district does not violate the First Amendment when it disciplines a teacher for allowing students to use profanity repetitiously and egregiously in their written work."

School officials contended Lacks violated a school "no-profanity" rule. However, Lacks argued that she was not given reasonable notice that the no-profanity rule applied to students' written work.

In the motion for reconsideration, Lacks' attorneys do not challenge the constitutionality of a school anti-profanity policy applied to profanity in all contexts. However, they argue that the question remains whether Lacks was given reasonable notice that the no-profanity policy applied to students' use of profanity in classroom creative works.

Attorneys for Lacks contend that "in rejecting Dr. Lacks' First Amendment claim, the panel drained all life from the requirement that a teacher must be given reasonable notice of what types of expression for which she may be terminated." They argue that "there was no evidence that any teacher or administrator, prior to this case, interpreted the Student Discipline Code to apply to students' creative works."

However, Frank Susman, attorney for the school district, says Lacks was given sufficient notice of what expression was prohibited. He said: "There was evidence presented both at the school board hearing and at trial that the principal told Lacks that profanity was not allowed in the school newspaper. Secondly, the appeals court correctly held that the policy on its face contains no exception for profanity in students' written work. Cecilia Lacks even had a 'no-profanity' sign in her own classroom. It doesn't get much clearer than that."

Both Lacks and one of her attorneys said they hope that the appeals court will reconsider its earlier decision. Lacks said: "We have taken the first step in the appeals process. We hope in good faith that the appeals court will, in the interests of fairness and justice, see the legal inconsistencies in its opinion. It is still very hard for me to understand how the appeals court arrived at its decision."

Lisa Van Amburg, one of Lacks' attorneys, said that "it is my sincere hope that the 8th Circuit will reconsider its decision. I think our petition sets out the mistakes in the panel opinion. It is extremely important that under the First Amendment teachers be given reasonable notice of what speech is prohibited."

Anti-censorship expert Diana Ayton-Shenker, director of the Freedom to Write program for PEN (Poets, Playwrights, Essayists, Editors and Novelists),said: "The facts clearly laid out that there was a First Amendment violation in this case. I fear that because of personal sensitivity [by the federal appeals court judges] to certain language, those facts weren't given the consideration they deserve.

"If we don't protect the free-speech rights of students to express themselves freely, especially in the context of a creative writing class, then we will stifle the minds of the future, Ayton-Shenker. "What I also fear is that this decision will lead to self-censorship in the classroom on the part of teachers."

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