Words Can Never Hurt Me

By Cissy Lacks

Na..Na..NaNa..Na.  Sticks and stones can break my bones but words will never hurt me.  I heard that childhood chant shouted across the schoolyard almost everyday of my grade school life.  It was a first and early defense against a verbal attack.

But as almost everyone knows, even children who yell the response, it is just not true.  Words are mighty.  What hardly anyone ever says, because no catchy chant could express it, is that as powerful as words are, the ones censored can cause more harm than those spoken.

As a teacher of English and Journalism for 27 years, I knew the childhood proclamation was wrong, appreciated the power of words, and didn’t censor student writing for fear of the inevitable damage it caused later.

In all those years, no one particularly cared to know what I was doing, how I felt about teaching or what I thought about words.  But in one day, that situation changed dramatically.  On that day, and then for days, months and years afterward, my teaching, as well as my personal life, received more attention than I ever could have imagined.

I was Person of the Week for ABC News, the cover for Teacher Magazine, a show topic for Dateline NBC and recipient of the prestigious PEN First Amendment Award.

I could have been participating in a most honored and affirming retirement—except I was not retired; I was fired.  Fired for listening to my students.  And perhaps as important, fired for listening to my students because they were one race and I was another.

In a confrontation over words, I was the collateral damage. What happened to me is a teacher’s nightmare, but the real victims were then and continue to be students in classrooms across the United States and, yes, even around the world.

I almost didn’t check my answering machine the night it all started.  It was 10PM, when I got home from dinner and the movies, late for a teacher who had to be up at 6AM and in her classroom ready to go by 7:10.  I pushed the play button more out of habit than curiosity.

Hello Cissy.  This is Mr. Mitchell, and the time now is 7:53.  I would like to talk with you regarding the tape that was done about two or three weeks ago involving your class, and I have viewed it.  I intended to talk with you earlier with regard to who has the tape.  It’s pretty shocking and I would like for you to meet me at the administration building tomorrow morning at 8:30.  There is no need for you to report to the school, I have them covered. You need to report to the administration building at 8:30 a.m.  Thank you.

I thought about the message on my machine.  The tape was pretty shocking.  I didn’t know what he was talking about, even after I thought about it and thought about it, all night, almost every minute of all night.

It turned out the tape was one my students had worked on three months before, a tape of drama exercises they had written as the culmination of a drama unit.  The drama exercises were first, sometimes awkward, attempts by students who took themselves and the assignment seriously.  And yes, they did use street language, and sometimes lots of it, in the dialogue they created for their characters.

At that 8:30AM meeting, I was suspended – a decision that had been made before I arrived.   Two months later, I was fired

In the 25 years that I taught creative writing, 20 of them in this same school district, I had never thought nor been told to censor my students’ writing.  When students were serious about communicating what they or their characters were thinking, they needed to choose the words without someone else telling them what words to choose.  This teaching method– allowing students their voices and then teaching them how to be most effective with their voices– was practiced in classrooms all over the United States.

In my case, no one ever had directed me to teach otherwise.  In fact, I had been rewarded and acknowledged as a successful and talented creative writing teacher for using the very same method now cited as the reason I should be fired.  My personnel file contained many complimentary letters and awards, and not one single complaint in all the years I had worked in the District.

The issue wasn’t really words.  The issue really was whether I, or any teacher, should censor students’ creative thoughts and expressions and whether I, or any teacher, could be fired without notice because someone took offense at what was produced in a classroom assignment – even though numerous classes over several years had learned to write through this same process and method with great success and without complaint.

It didn’t take long to find out that words were only one motive for my firing.

That the concerns of the principal were more about race than about words was reflected in a comment he made to one student about the drama exercises:

And when I looked at that tape, I see black students acting a fool, okay?  And I see white folks videotaping it, okay?  Did you think about that…?

My students wrote their scripts after watching a television interview of a Pulitzer Prize winning playwright give advice on writing. Write about things important to you and write from authentic voices you hear in your lives, he said.

I told them: If you want to see yourself on tape, if you want to see how you project yourself, we can tape these productions.  But I want to tell you that I know it takes some guts to look at yourself and critique yourself and the only people who will look at the tape are the students in our two classes.

We had nothing to hide.  Many people, including parents and administrators, had sat in on my classes, observing works in progress with my students’ knowledge and agreement.  Also, I encouraged students to perform work publicly, when they and I thought it was ready.  In this instance, the school district made the decision to show my students’ work in public.  They showed the very tapes that I had promised my students would not be shown outside our two classes.  The school administrators did not ask permission of my students, their parents, or me.  After the school district confiscated the tapes, the tapes somehow were made available to local TV stations and soon were broadcast on the major networks.  In addition to my case being about respect for teachers and for students, it was also about important educational issues such as rights to privacy and safe, time-out places in classrooms and trust between students and teachers.

In a subsequent meeting with the three administrators – the principal of the high school, Vernon Mitchell; assistant superintendent of personnel, John Wright, and an assistant superintendent of curriculum, Barbara Davis– who initiated the termination charges against me, I offered an example to illustrate the power and potential of words for a student’s intellectual growth.   A student in one of my classes at Berkeley High School walked into my class everyday, went to the back of the room and put his head on a desk.  He was disconnected from me, from school, from learning and probably from himself.  But inside him was a poet that even he didn’t know about, and when we started writing poetry in class, he couldn’t resist joining in.  The first two exercises he read aloud fired out like an unaimed shotgun – exploding with street language, gang slang and anger.  Less than three weeks later he wrote a poem that won a District award and had his fellow students and me in tears:

 

Alone       by Reginald McNeary

I’m all alone in the world today.

No one to laugh with no one to play.

It’s been like that since the age of three.

No one to love, care or hold me.

I guess that’s why I’m the way I am.

No one loved me so I don’t give a damn.

No one to pick me up when I fall.

No one to measure growth or how tall.

Alone how it hurts inside.

If I were to die, no one would cry.

I never gave a damn about any other.

I love my shoes

More than I love my mother.

You might think I’m the Devil or call me Satan.

I have no love I’m so full of haten.

I guess that’s why I have low self esteem.

The only time I show love

Is in my dreams.

 

Two days later, my attorney told me that these administrators had added a charge of profanity in poetry and had submitted as evidence Reginald’s first two poems.  They had ignored and discarded Reginald’s final poem that had been published and had won awards.  These administrators said they didn’t remember having seen it.  They totally ignored the process of teaching and they totally ignored the results of the process.  Why would people entrusted with the responsibility to educate children do such a thing to me or anyone else?

At my hearing before the school board, one of my students testified that profanity was part of her life and the characters she wrote into the scripts came from people in her life.  She said that she appreciated the opportunity to write about life as she saw it without being censored.  She shared what she learned from completing the exercise which included her explanation of how important it was for her and her classmates to care about what they were doing and to believe that what they were writing and the skills they were learning had a value in their lives.

When my student was finished, a school board member asked her, “If things could be different for you, would you like them to be?…What I was getting at, if you are in a situation where you don’t want to be, like you were saying black, African community, that’s the way it is, is profanity, where do we begin to change that…?”

My student looked right at this board member and said, “I like the way my life is now,” and added a few minutes later, “My mother raised me right.  If you don’t disrespect me, I won’t disrespect you.”

My student knew what the school board member had yet to comprehend.  People of all ages have different ways of speaking in different circumstances.  Teenagers are no different from anyone else.  Even more important, realities in people’s lives are not the same; yet, some people are not willing or capable of understanding or facing the differences. They would rather live with the lie that everything is just fine for everyone.  If they admitted otherwise, they might have to deal with the circumstances that weren’t so fine.

This creative writing assignment and this teaching  method in a high school in St. Louis County, Missouri, received national interest as soon as the controversy hit the wire services And it didn’t receive attention because some student creative writing had street language in the dialogue.  Why I became a lightening rod is connected to a complex set of factors involving race, school politics, cultural struggles, teachers’ roles, authority concerns, denial  mechanisms, power issues and numerous other influences and stresses in our society.  No matter what circumstances were stirring the pot, one premise should have been of utmost importance: Teaching students to understand voice would help them know who they were and that self-knowledge would enable them to find a place for themselves in the world.   A classroom of students was learning how to communicate to others and themselves about who they were and what happened in their lives.  Because some people might not like hearing what the students had to say, or how they said it, was no reason to stop the conversation.  The entire country seemed to recognize the importance of this issue.

At the school board hearing, the Ferguson-Florissant School District submitted  Reginald’s first two poems and the taped drama exercises to justify my dismissal.

They did not submit Reginald’s award winning poem, and they would not recognize my success in the classroom.  While some people may have been taken aback by my students’ dialogue and  Reginald’s first poems, many more were amazed by the District’s repudiation of its own curriculum directives for teaching writing in the Ferguson Florissant School District – curriculum directives which I followed.

The District’s written instructions to teachers included the following:

   Don’t tell writers what should be in their writing or, worse, write on their pieces.

   Build on what writers know and have done, rather than bemoaning what’s not on the page or what’s wrong with what is there.

   Resist making judgments about the writing.

   In questioning students, ask about something you’re curious about as an inquisitive human being.

And this astonishment grew even greater when I explained that the official grounds cited for firing me had nothing to do with curriculum or instruction.  I was accused of disobeying an appendix to the student discipline code, that appendix being the only place in any school board regulation which mentioned profanity. Some examples of student behavior that would be in violation of this type of regulation are tardiness, unexcused absence, leaving school grounds without permission, …littering, profanity, insubordination, inappropriate dress, and lying to school authorities.  Punishment for a student who was determined to have violated this appendix might be nothing more than a talking to or, in the most severe instances, a 10-day suspension.  Several District teachers and administrators testified that no teacher would expect that an appendix to a student discipline code could be construed in any way as the basis for disciplining a teacher, nor could it be applied to students as they were involved in instructional activities.

Kangaroo Court was in session.  Many observers likened my six-day hearing to the Scopes Monkey Trial.

Even worse than ignoring their own policies was the lie the District used to “prove” that previously I had been warned about the use of profanity.   According to state and federal law, as well as the Ferguson-Florissant teachers’ contract, teachers must be given a fair warning if the District believes a teacher is acting in violation of a District policy.  Disciplinary action can be taken if the cited behavior continues after this warning.  No one had ever warned me to censor my students’ language, but so what? The Board, the administrators and the lawyers were all working together.  If someone made up something, it was true if the decision-makers said it was.  It was a game of the emperor’s new clothes.  One of the lies made up by the principal was, and is still, my worst nightmare of the case. Although I would have the satisfaction of seeing him forced to answer for his lies in federal court, later I learned that he would be allowed to get away with them.

If I could have looked ahead in time to my court case, and then returned to the beginning, when the District was accusing me, I would have known my story was the same as the myriad of stories like mine in schools everywhere.   Good teachers trying to work effectively with their students were getting trapped in our country’s culture wars.  Learning fields had become mined battlefields, but it was going to take my case, and some others, and a handful of catastrophic school violence incidents before most teachers would understand how vulnerable they were, and how ineffective this new censorship dogma would render them.  The public’s awareness of the culture wars playing out in our public schools was even further behind than the teachers’.  At the moment I was attacked by the school district, it was to be expected that my supporters and I did not know what this turmoil was all about.  We were sure it wasn’t my students’ tapes that were the issue but we couldn’t have imagined what it really was either.  But we would learn, learn more than anyone would want to know.

I was stunned at the intimidation and bullying perpetrated by these administrators in their meetings with me.  After all, I had worked with these people for over 20 years.  I chose to have a public hearing, and, when I sued the Ferguson Florissant School District, a public trial.  I believed an open hearing with the opportunity to examine District administrators was the only way these administrators and the school board could be made accountable for their behavior.

The morning I was called in and summarily suspended, one assistant superintendent ending the meeting by saying I should, “Go home and do nothing,” suggesting in her tone that I wasn’t good for anything else.  At that meeting, none of the three would  tell me what tapes they were talking about, and I didn’t know.  When I did find out, they refused to let me see my classes’ drama tapes upon which they were basing their actions, even though the tapes had been just one of many classroom exercises done three months earlier.  These three administrators also tried to intimidate my students.   They tape-recorded interviews of some of the students in those classes, refusing to let us attend the interviews, and then submitted, to their attorneys and us, inaccurate summaries to help their case.  The three administrators denied that actual tapes existed. When students insisted the conversations were recorded,  the District was forced to relinquish the audiotapes in response to my attorney’s legal request.

The principal  had confiscated the student tapes from my locked classroom closet, but other items were taken as well.  One of them was my grade book.  And, at a meeting called by these administrators supposedly to listen to my explanation of the situation, the assistant superintendent of personnel started by suggesting that my grade book was evidence that I kept attendance in a manner against state regulation. .  He also brought up the vulnerability of my state teaching certification, preparing me for what I later learned was a common practice by administrators –  offering to take my resignation in place of any further proceedings that “would hurt my career.”  These three people let me know that they were looking for anything they could use against me.

A few days later, I was told that the three of them had asked educators in the District to watch the drama tapes and write observations about what they saw.   When the administrators didn’t like what the educators wrote, each educator was asked to rewrite the observations – one person having to do so three times.  At the trial, these educators testified that the implied messages were pretty clear: until they included negative comments about my project with my students, their write-ups would be sent back for “revision”.   These District decision-makers had no regard for my 25-year exemplary career, but the only way their abuse of power would be acceptable was if other people didn’t know what their standard practices were.  First they intimidated, and then they offered the alternative of resignation.  When I chose a public forum to fight the charges against me, the media shined a light on the Ferguson Florissant School District’s administrators and school board, exposing the District to public view and public criticism as well as ridicule.

My supporters and I began the school board hearing knowing the odds we faced.  The lawyer who represented the administrators and argued their case was also the lawyer for the school board.  If a school board ignored the dismissal recommendation of their administrators and supported the teacher, they would undermine the leaders of their district to say nothing of the lack of faith they would show in their own legal counsel.  Still, we believed that, at their core, this school board wanted to focus on the students’ best interests, the truth, the integrity of the classroom, and their community’s commitment to public education.   We believed that if abuses that had taken place were exposed, the school board would take action to remedy the situation.

My attorney began the hearing by saying,

“…My name is Lisa Van Amburg, and I represent Dr. Cissy Lacks, a 25-year veteran teacher of this district.  We will prove to you tonight that these charges have absolutely no merit whatsoever.  Rather, they are part of a reckless, deliberate and malicious scheme by several administrators in this District to fire a master teacher, whose teaching methods have been proven to work…we will prove to you that the actions taken by Dr. John Wright and Mr. Vernon Mitchell, with the assistance of Ms. Barbara Davis, were taken in utter disregard, not only of this teacher’s rights, but of the rights of her students to learn.”

The District called the assistant superintendent of personnel as its witness.  He said he couldn’t interpret curriculum directives and that we’d have to ask the assistant superintendent of curriculum.  The law firm, which represented both the administrators and the school district, showed the tapes of my students to the school board but they positioned the screen to face the audience of over 400, including numerous TV cameras from local stations.  School board members had to move their chairs to see the screen.  And they submitted Reginald’s first poems.

My attorney wanted to show how the process of learning takes place in a classroom.  We brought in respected educators, both from the District and the St. Louis community, to testify.  Students involved in the writing of the drama exercises testified, as did my students from years past.  Parents came forward and even other brave administrators from the District testified that they had never thought that the student discipline code could be used in the way it was being used in my case.  I testified, using my time to illustrate the teaching techniques I had used successfully for 25 years.

In the termination hearing before the school board, the principal testified that I had been warned about allowing students to use profanity in the newspaper.  I had started a newspaper and journalism class at the high school, and he said the first edition printed the f word and the s word, among others.  He said that he had to call me in and tell me to never allow these words again and then he said he asked to preview every newspaper thereafter.  The only true part was that he did ask to preview every newspaper.  The rest was made up and neither the f word nor the s word was in the first newspaper.

His accusation was a matter of fact, not a “he said, she said” situation.  When he testified, he said he didn’t have the first edition with him.  We brought it in the next day and submitted it as evidence.  No such words were in the newspaper.  He had made the whole thing up.  Nevertheless, the school board findings cited testimony of the principal Vernon Mitchell as evidence that I had been warned previously about allowing my students to use profanity.

Perhaps we should have known better than even to try.  The same legal counsel who represented the administrators wrote the findings that the school board president signed in my official dismissal.   Later, one school board member, in deposition and under oath, testified that the school board had never discussed the student discipline code as it applied to my case and had discussed only one or two of the 23 findings listed in my dismissal.  It was understood, without saying, that the others had been the creation of the lawyer to make a legal case for the District.

Another Board member said in the deposition getting ready for trial,   “And I’m the only one who made my vote public.  I voted to terminate her.”  She repeated that expression so often during her deposition that when she said Terminate her, I heard it like a chant–Terminate her…Terminate her…Terminate her…Terminator, and I began to wonder if she was afraid of me because she thought I had the power of an Arnold Swartzenagger character, which I could have assured her I did not.  She did say she was sure I thought I had done nothing wrong and she was afraid that if I returned to the District, I would teach as I had taught before.

As it happened, getting fired brought me more than five minutes of fame.  Instead of lighting up like a sparkler and then fizzling out, my story grew, slowly and seriously, from the Midwest to the rest of the nation. Education Week, a newspaper for educators, published a story titled, “Expletive Deleted”.   The author said she did not chose the title because of the language in the student dramas but because she had come to realize in her investigation that these Ferguson Florissant administrators and Board Members viewed me as the “expletive deleted.”

Her article was reprinted for the cover story of Teacher, a national magazine, and even I had a hard time admitting it was me on the tabloid size, 4-color, glossy cover, a picture of me with my hands reaching out as if I wanted to grab the readers and pull them into my story.  The dramatic effect of that cover was, “This teacher has a story to tell,” at least that’s what the Dateline NBC producer said when he called to say Dateline was interested in doing a segment on me.

In our phone conversation, he said, “We’re going to look at all sides, but this story is going to be about teaching.”  Others wanted to talk about profanity.  Dateline wanted to talk about teaching.  I did the story.

The highs and lows of my emotional life were almost always in the extreme.  I can’t remember having too many ordinary days.  Before my suit against the District was heard in Court, I received the prestigious PEN award given, by Paul Newman and the international literary organization PEN, to a person who had defended the First Amendment at some risk to herself.

Actor Paul Newman introduced me at the ceremony and began,  “The battle to safeguard freedom of speech has its casualties in this country too….”  The stature of the award was increased by the reputation and stature of the man who presented it.

I took deep breaths while he was talking.  Then I heard him say my name, and I was at the podium.   I closed with words I hadn’t planned – words that came from the events of the last few days – from being on television as ABC’s Person of the Week, from being on stage at Lincoln Center, and from listening to Paul Newman talk about me.

…. I understand the awesome responsibilities that go with this award.  I understand my obligations to speak about teaching and about writing, and I welcome the opportunities that have been and will be given to me.  I thank you for taking this public position in my support, and I want you to know that I will not let you or myself down.

I learned later how hard it was going to be to keep that pledge.

Before the jury trial, the Federal District Judge, Catherine Perry, ruled on Count One of my case, reversing the Board’s dismissal and ordering my reinstatement.  Among other things, she wrote:

The record as a whole clearly indicates that there was in practice an unwritten exception in the district for profanity in class-related activities. The evidence presented to the board was overwhelming that many administrators and teachers in the district allowed class-related profanity depending on the context and degree of profanity…. Defendant submitted no evidence indicating that the district in fact enforced policy 3043 to prohibit students from reading aloud or otherwise using profanity in creative works.

The District refused her reinstatement order. Only an injunction and a long appeal battle would get me back in the classroom, and, then, the trial would be postponed until this reinstatement order went through required appellate procedures.  I would be in legal land forever.  My attorney and I decided not to fight the District’s refusal to obey the Judge Perry’s reinstatement order.  I didn’t see that we had any choice.   A teacher, I learned, had little clout outside of her classroom and now I had to face, not too much clout inside either.

In the courtroom, my attorney put the legal issues in lay terms before the jury:

You’re here to decide a case about how a teacher of high school English in a troubled school where many kids are not interested in education, how she motivates the kids to write, how she turns them on to the value of poetry, how she gets them to engage in poetry contests, short story writing contests, work on a high school newspaper and sign up for Journalism class.  We’re asking you to decide whether the District can summarily terminate a teacher who uses a time-honored teaching technique called the student centered learning technique which is the technique recommended by the Ferguson-Florissant School District, and we’re also asking you to decide whether the illegally, racially motivated fears of two administrators Vernon Wright and John Mitchell was a consideration in the firing of Cissy Lacks.

The witnesses who had been at the school board hearing testified again, but at the jury trial another witness came forward; that witness was Reginald McNeary.

He told the jurors:

.. I was not going to try, and Ms. Lacks explained to us that writing was just what’s inside of you, what you feel, and what’s on your mind, and anybody could write that.  I mean, it’s really hard to write what somebody else wants you to write, because you have to have their standards, and you have, it’s like they might not like it, …but it was brought to us in a way we could understand it, and I picked up from that.

My attorney asked him if the first poems he wrote reflected anything inside of him at the time.

I guess hatred and anger.  I really don’t like to talk about those first poems.  They are embarrassing.

He continued to tell the jury about how he became a poet.

It was like I woke up, or whatever, because I never knew that I had the potential or ability that I had, and so now, it was like easy…write what you feel and what’s on your mind, so I was writing, I was writing like, I would say, within a month, I had about eight poems, I was writing songs, and I started a book, a book….when this month was over, it was like this is powerful.

He told the jurors what would have happened if I had censored those first poems.

I probably wouldn’t have wrote again. I probably would have told her something….I mean, it’s just like, to come out of, I don’t think you understand where I was at, and I was not really participating, so to write anything, if I was just to write my name would be like a big or valiant effort, and if I was to come out of my shadow and write something and somebody was to criticize me, I would be mad.  It would hurt my feelings, too.  I probably wouldn’t have came to the class again.

During the courtroom trial in a federal district court, we called Vernon Mitchell to testify regarding what he had told the board members, under oath, about profanities in the first newspaper:

When you testified under oath to the Board of Education in Ms. Lacks’ termination matter, you told them that the first issue of the paper, the Berkeley Bulldog Express, had profanity in it, did you tell them that?

Yes.

You told them that under oath, didn’t you?

           Yes.

And you told them that you had talked to Cissy about profanity in the newspaper after the first issue came out, didn’t you?

Yes.

You also told the Board under oath, Mr. Mitchell, that the F word was in the first issue of the student newspaper, didn’t you?

Yes.

What word were you referring to?

Fuck, is that what you want me to say?  That was the F word.

You told the Board the word fuck was in the first issue of the newspaper?

Yes.

You also told the Board the word shit was in the first issue of the newspaper, didn’t you?

Yes.

Mr. Mitchell, I’ll show you what’s been marked as Plaintiff’s Exhibit 35, which is the Berkeley Bulldog Express newspaper, and the first issue is on the top of that stack there.

Would you take the first issue and tell us where the word fuck appears in the newspaper and where the word shit appears in the newspaper?

I don’t see it in there, he said.

So you told the Board a lie, didn’t you Mr. Mitchell?

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.

Mr. Mitchell, you approved of all the other issues of the newspaper that came out after the first issue, isn’t that true?

No, it’s not.

After the first issue, sir, nothing got published without your approval, isn’t that correct?

No, the answer was no.

Mr. Mitchell, do you recall me asking you at the Board termination hearing in March of 1995 the following question on page 179?  Question:  ‘In fact, nothing gets published in those papers without your approval, isn’t that true?’ And your answer was, ‘After my conversation with, after the first paper, then it has to have my approval, that is correct.’ Was that true when you testified?

“Yes.

Although I was never able to talk to the jurors, I suspected they were indignant at the testimony of Vernon Mitchell.  I knew that I was.  But, at the time, I didn’t know that the meaning of indignant hadn’t come close to being defined

Reginald and the other students who testified on my behalf made me so proud to be a teacher. Their bravery, earnestness, and articulateness under such pressure were more than admirable.  At the same time, the principal, his supporting administrators, and board members made me ashamed to be part of that District and public education.  Their distortions, their lies, and their lack of educational concerns were frightening indicators of how their decisions were made and enforced.

After three and a half years of waiting and preparing, two weeks of trial and seven hours of jury deliberation, we had a verdict.

On First Amendment claim, number one, did plaintiff have reasonable notice that allowing students to use profanity in their creative writing was prohibited?

No.

I looked at the jurors.  Each one of them was looking directly at me.  For the first time, in two years since I had been fired, my body relaxed

Number two, did defendant School District have a legitimate academic interest in prohibiting profanity by students in their creative writing, regardless of any other competing interest?

No.

Then the Judge announced the verdict on the race discrimination claim.

On the claim of plaintiff Cecilia Lacks against defendant Ferguson Reorganized School District R-2 for race discrimination, we find in favor of plaintiff Cecilia Lacks.

Has it been proven by a preponderance of the evidence that defendant would have discharged plaintiff regardless of her race?

Answer:  No.

I bent my head into my hands and then raised it to look at the jury again.  I wanted to talk to them, to thank them but the Judge said to them:

I need to warn you about what may be obvious. You may be contacted by the news media and asked about this case…and you are free to handle any such requests any way you want…I wouldn’t be surprised if you walk out of the building and there will be people there…

All the jurors left together, escorted by the guard.  I thought I’d get to thank the jurors.  I had wanted to so much.  We opened the door to the courthouse entrance and below us was a row of camera lights shining up the courthouse stairs.  It was dark and a little cold.  The lights reflected off the night air, illuminating vapor clouds in front of us and blurring the reporters at the bottom of the stairs.  For a second, I remembered the day I was fired and then I announced,  “We won.  Teachers and students won.”

I believed then what my attorneys told me about the legal system:  “Juries decide fact.  Judges decide law.”  Along with that proposition, almost everyone in the legal field said that my case couldn’t be overturned.  The facts were too strong; the jury verdicts were too firm.

As we expected, the District appealed the decision.   I could never have predicted what happened during oral argument in the 8th Circuit Court of Appeals, but I predicted what was going to happen afterwards.

I got concerned almost immediately when Richard Arnold, who was chief presiding Judge of the 8th Circuit, asked my attorney why Mitchell’s statement about being bothered by “blackfolks acting a fool and whitefolks videotaping it,” was part of our race claim. At first, I thought he was joking, but I soon found out that he wasn’t.

He began to ask questions as if the findings from the school board were true, even though we had disproved them at trial and I was told he had to take the facts of the jury trial in my favor as the true ones.  When my attorney protested, Richard Arnold asked him if he was now telling school boards whom they were supposed to believe and not believe.  It was as if the jury trial never took place.

Another judge inquired of my attorney, “A teacher as intelligent as Dr. Lacks, must it be assumed that she has to be led by the hand?”

Although the question didn’t seem to have any relevance to appeal procedures and certainly had been covered during the trial, still, I was wishing for my attorney to defend me, to answer the question. Tell him that I knew exactly what I was doing, that I’m a master teacher who has great success with her students and keeps up on the research for the teaching of language arts.  Tell him that the jury heard the record and made the decision about whether I knew what I was doing or not.   But my appeal attorney, no longer the one I had at my jury trial, interpreted the question as rhetorical and did not respond.  I wanted to interrupt the proceedings and defend myself.  Although I knew that speaking out from the visitors’ gallery would have shocked everyone, sometimes, now, I wish I would have.

When my attorney tried to bring up the testimony of expert witnesses, Richard Arnold interrupted him and said not to talk to him about expert witnesses. A few weeks ago, in another case, one of them had said students should use rap to learn how to write and it would never happen as far as he was concerned.

I didn’t understand at all what was taking place.  I had been told these judges couldn’t retry the case; they could only respond to legal issues arising from Judge Perry’s rulings.  Clearly, they had other things on their mind.  I left the courtroom discouraged and disheartened.  My attorney said I was over-reacting.  I knew that I wasn’t.  These men didn’t have any idea of how to teach, how to reach students, what was going on in the real world of schools and yet they were ready to make judgments based upon their attitudes about learning and culture, not about their responsibilities to interpret law.  I was in deep trouble; teachers were in deep trouble.  These men were going to do great harm to students because they decided they knew so much more than all of us that they didn’t have to listen to us or to the jury or pay any attention to the record.

Even though I knew the case was in trouble, their written opinion five months later was a sickening shock.  They overturned every single jury verdict and Judge Perry’s reinstatement.  They began by saying:

We reverse and remand for the entry of judgment in favor of the defendant school district.  We hold, among other things, that a school district does not violate the First Amendment when it disciplines a teacher for allowing students to use profanity repetitiously and egregiously in their written work.

It was all about profanity and nothing else.  Reinstatement was gone.  Fair warning was gone.  Legitimate academic purpose was gone.  Title VII, race discrimination, was gone.   I wondered where it all went.  Where did they put it?  For the sake of ruling on profanity, three judges dismissed the law.

Then they proceeded to overturn the factual decisions of the case regarding fair warning:

After a careful review of the evidence, we hold that the record contains sufficient evidence for the school board to have concluded that Lacks willfully violated board policy.

In the Opinion, Richard Arnold wrote:

…The court may not substitute its judgment of the evidence for that of the school board, and it must consider all evidence in the light most favorable to the decision of the board. The determination of the credibility of the witnesses is a function of the school board, not the reviewing court…..

Lacks claimed that Mitchell never warned her about the use of profanity in the newspaper.  However, under Missouri law, assessing the credibility of witnesses is the function of the school board, not the reviewing court.  Because the school board heard testimony that Lacks was directly warned by the principal in her school that including “S blank blank T” and “F blank blank K” in the student newspaper violated the school board’s profanity policy, the board could have reasonably found that Lacks knew that profanity was not allowed in students’ creative activities.

They dismissed the first amendment claim as easily:

….We reverse and hold, as a matter of law, that the answer to both of those questions was “yes.”

The race claim was the same:

We reverse and hold as a matter of law that race was not a motivating factor in the school board’s decision to terminate Lacks…The idea that the board “had race on its mind” when it fired Lacks …is questionable, especially given that the president of the school board, who signed the statement, testified that she did not believe that Lacks’s case involved racial issues.

Now, school board members decided not only the credibility of the witnesses at the hearing, but they decided the credibility of their own testimony at the trial.

As far as I could tell, Richard Arnold, who had written the opinion, did so as if the trial never took place, as if the jurors hadn’t heard witness testimony, as if evidence hadn’t been submitted to them.   I remembered the fear I had when my first attorney, Lisa Van Amburg, told me that the administrators and their lawyer had thrown away Reginald’s last three poems and submitted into evidence only the first two crude ones.  That same, sick panic returned.

I thought my school board hearing was the definition of Kangaroo Court.  I had no idea that an appellate judge would or could not only blatantly disregard evidence but also use false evidence to suit his position.  His disregard for the basis of our legal system didn’t seem to concern him, but I, and teachers across the country who were following my case, were as disillusioned as children who realized that the tooth fairy didn’t exist.  I didn’t know how my belief in the legal system would ever be restored, and I wondered if Arnold had any concern over the damage he had done to me and to teachers and to our faith in the legal system so important for us to share with our students.

We did get his message, though.  School board members could do whatever they wanted to teachers.  Tenure meant nothing.  School policy meant nothing, except in how it was interpreted at a particular moment. Good teaching meant nothing.  Negotiated agreements were inconsequential.

We asked for the entire 8th Circuit to reconsider the case.  They refused.  One of the judges, Justice Theodore McMillian, wrote an opinion in dissent, requesting them to reconsider:

The outcome of this appeal does not affect only the parties to this action.  It affects all innovative and well-meaning teachers like Lacks and students in need like Reginald.  When good educators are scared away or driven from our schools because they cannot trust the system to treat them honestly and fairly, we are all affected, most especially our children…

In this day and age, while our children are being exposed to the worst aspects of society through the media, entertainment, and sometimes even in their own homes, we expect public school teachers to erase the effects of that environment and make even the most uninspired children learn and achieve. Meanwhile, we require our teachers to pick their way through a minefield of competing and conflicting expectations, and changing and elusive legal standards. This case stands for the proposition that, for all her hard work and devotion to all her students, this teacher was in the end fired for stepping on a political land mine–one which she never even knew was there. This case was wrongly decided…

We asked for my case to be heard before the Supreme Court.  Fifteen national education organizations signed an amici brief on behalf of my case and on behalf of public education.  In it, they said:

… (this) case presents the issue of whether it is constitutionally permissible to make a teacher a scapegoat or fire her for using a particular teaching technique that she had used for years, without first putting her on notice that use of that method is no longer permitted….the decision (of the 8th Circuit) promises to create serious confusion and even alarm and dismay among educators around the country, who must guard now what they say and teach  This Court should review the obviously flawed decision of the Eighth Circuit because it raises issues of great import to the governance of the public education system, and because of the need for greater uniformity and predictability in the implementation of important constitutional issues.

My case was not taken.  The appeal decision was the final one.

Often, after I was fired, I was asked to speak to teachers beginning their careers. I said that I wished them the same joy, frustration, and pleasure in being with students that I experienced in my career.  I wished them the same long-term relationships I had with many of my students.  I wished them the opportunity to have dialogues with students that allow them to establish a sacred classroom space, one in which respect, trust and joy permeated the learning activities.  I wished them the opportunity to see their students become productive adults.

Also, I told them that for every lesson planned, for every assignment made, I didn’t want any person to teach in fear of losing a job.  I didn’t want any classroom teacher or any class of students to fall prey to such a chilling effect on learning.  I told them my message to my attorney: the legacy you create for me and for all teachers must be the right one.  I didn’t want my name to be associated with the case that struck fear in the hearts and minds of every teacher.  And certainly, I didn’t want self-censorship to take place because teachers were afraid.  I wanted a strong statement to be made for academic freedom and teachers’ rights to teach because those practices were critical for good education.

What I wanted did not happen. I am left with more unanswered than answered questions. How could I make sense of such craziness?  Did some group of lawyers get together and concoct a horrible travesty of what teachers and school board members had negotiated in good faith over hours and years of conversation.  But then why did board members go along with it?  And how could judges say that a school board could believe whatever it wanted – with direct evidence to the contrary, with an opposing jury decision from two and a half weeks of testimony and with a federal district judge hearing everything and reinstating me?  How could so many people in decision-making positions ignore educational research, disregard civil rights issues, distort material and evidence, and lie under oath? And pretty much get away with all of it.

The lesson I learned is one I regret having to share.  I have come to realize that these people didn’t know, didn’t care to know, and didn’t care to learn what goes on in a classroom and why.  And in many ways it’s not useful to speculate about motive because the point is what happened to me could happen in any school district.  The conditions seem to be ripe for this kind of abuse of civil rights.  The aftermath is the fear that teachers have and the harm those fears create in students’ education.

I am still trying to make sense of the experience and how telling the story might help students and teachers.  I remember and still plan to keep the pledge I made at the PEN ceremony, that I understand my obligations to speak about teaching and about writing, and I welcome the opportunities that have been and will be given to me.   I keep with me Justice McMillian’s thoughts: When good educators are scared away or driven from our schools because they cannot trust the system to treat them honestly and fairly, we are all affected, most especially our children.

This attack on teachers and on education needs to draw the attention an epidemic requires.  Teachers afraid to teach produce students afraid to learn and a society in turmoil because its citizens are afraid and unable to deal honestly and effectively with the realities confronting them.

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