Lacks v. Feguson-Florissant Reorganized School District, R-2 Petition for Writ of Certiorari
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December 21, 1998

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Brief Collection, LDF Court Filings. Lacks v. Feguson-Florissant Reorganized School District, R-2 Petition for Writ of Certiorari, 1998. 28c33f3c-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/695953eb-64f3-4e70-83cd-e1c30fda0cd1/lacks-v-feguson-florissant-reorganized-school-district-r-2-petition-for-writ-of-certiorari. Accessed April 22, 2025.
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George H. Cohen Robert H. Chanin Robert M. Weinberg Jeffrey L. Gibbs Julia Penny Clark Jeffrey R. Freund W. Gary Kohlman Jeremiah A. Collins Mady Gilson David M. Silberman Bruce R. Lerner Andrew D. Roth John M. West Douglas L. Greenfield Roger Poliak Anne Ronnel Mayerson BREDHOFF & KAISER, p l .l c. Attorneys & Counselors 1000 Connecticut Avenue, N.W. Washington, D.C. 20036-5398 (202) 833-9340 Facsimile: (202) 833-5588 December 21, 1998 Leon Dayan Alice O'Brien Devki K. Virk Jonathan D. Hacker Daniel J. Chepaitis Margo Pave Laurence Gold Patricia Polach Page Kennedy Constance Markakis Of Counsel Elliot Bredhoff Senior Counsel Norman J . Chachkin, Esq. NAACP Legal Defense and Educational Fund, Inc. 99 H udson Street New York, New York 10013 Re: Lacks v. Ferguson-FIorissant Reorganized School District, R-2, U.S.S.Ct. No. 98-983 J\f tw »> • Dear Mr—Cha^dikin: Enclosed is a certiorari petition we recently filed on behalf of an NEA- represented teacher, raising F irst Am endm ent and Title VII issues. A num ber of organizations in tend to file an amicus in support of cert on the First Am endm ent issue. If there is any possibility th a t the Inc. Fund might be in terested in filing on the Title VII issue, please contact me to d iscuss the m atter. T hanks for giving th is your attention. JAC:rpa Enclosure n*53c5«T> In The ftupratt? dmtrt of % Ti&mttb ^tato October T erm , 1998 Cecilia Lacks, Petitioner, v. F erguson-Florissant R eorganized School D istrict, R-2, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit PETITION FOR A WRIT OF CERTIORARI J eremiah A. Collins * Leon Dayan Bredhoff & Kaiser, P.L.L.C. 1000 Connecticut Ave., N.W. Washington, D.C. 20036 (202) 833-9340 * Counsel of Record W i l s o n - Epes P r i n t i n g Co., In c . - 789-0096 - W a s h i n g t o n . D.C. 20001 QUESTIONS PRESENTED 1. Where a public school teacher is terminated for speech that she could not reasonably have understood to violate a school district policy, is the First Amendment requirement of reasonable notice satisfied merely because it is linguistically possible to construe the district’s policy as prohibiting the speech in question? 2. Where an employee would not have been terminated but for the racial animus of supervisors who played a crucial role in the termination process, does the fact that the ultimate termination decision was made by a body which was not itself racially motivated preclude holding the employer liable under Title VII? (i) TABLE OF CONTENTS Page QUESTIONS PRESENTED ................ i TABLE OF AUTHORITIES................................ ............ iv OPINIONS BELOW ................ ............. ............ ................ 1 JURISDICTION....... ....................................................... 1 CONSTITUTIONAL AND STATUTORY PROVI SIONS INVOLVED.......................................................... 1 STATEMENT OF THE C A SE......................................... 2 A. Overview.................... 2 B. Statement of the Facts.............................................. 4 C. Proceedings in the Eighth Circuit .................... 13 1. The Panel Opinion...... ........... ..................... ......- 13 a. The First Amendment Notice Claim------- 13 b. The Title VII Claim....................................... 14 2. The Dissent from the Denial of Rehearing En Banc .............................................. 15 REASONS FOR GRANTING THE W RIT................... 15 I. This Case Raises an Important Question That Has Divided the Circuits Concerning the Na ture and Scope of the First Amendment Re quirement That the Government Must Provide Teachers With Reasonable Notice as to What Speech Is Prohibited Before Disciplining Them for Their Expressive Activities ....... .................. 16 II. This Case Raises an Important Question That Has Divided the Circuits Concerning Employer Responsibility Under Title VII for Employment Actions Infected by Discrimination on the Part of Supervisors Below the Rank of Final Deci sionmaker .......... ................................... ..................... 30 CONCLUSION ....... ............ ............ ................................. 30 (hi) TABLE OF AUTHORITIES CASES Page Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) .................... 24 City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) ............... 23 Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), cert, denied, 111 S. Ct. 1290 (1997) ..... 19 Cox v. Louisiana (II), 379 U.S. 559 (1965) ____ 20 Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) .................................... 24 Gebser v. Lago Vista Independent Sch. Dist., 118 S. Ct. 1989 (1998) .... ................... ............. ........... 23,24 Griffin v. Washington Convention Center, 142 F.3d 1308 (D.C. Cir. 1998) ....... ................... . 25, 26 Gusman v. Unisys Corp., 986 F.2d 1146 (7th Cir. 1993) .............. 25 International Society for Krishna Consciousness v. Eaves, 601 F.2d 809 (5th Cir. 1979) .............. 20 Jett v. Dallas Independent Sch. Dist., 491 U.S. 701 (1989) ....................................................... 23 Keefe v. Geanakos, 418 F.2d 359 (1st Cir. 1969) ..17, 18, 21 Keyishian v. Bocvrd of Regents, 385 U.S. 589 (1967) ................... ............................ ........................ 16, 17 Kramer v. Logan County School District No. R-l, 157 F.3d 620 (8th Cir. 1998) ................................ 29, 30 Mailloux v. Kiley, 448 F.2d 1242 (1st Cir. 1971), affg 323 F. Supp. 1387 (D. Mass.) ............... ....... 17 Nashville, C. & St. L. Railway v. Browning, 310 U.S. 362 (1940) ............................ ....... ............... 20 Parker v. Levy, 417 U.S. 733 (1974) .... ................. 20 Raley v. Ohio, 360 U.S. 423 (1959) ..... ................. . 20 Roebuck v. Drexel University, 852 F.2d 715 (3rd Cir. 1988) ....................................... ......................... 25,26 Shager v. Upjohn Co., 913 F,2d 398 (7th Cir. 1990) ............................................................ ............. 27,28 Simpson v. Diversitech, 945 F.2d 156 (6th Cir. 1991) ....... .................. .............................................24, 25, 26 Speiser v. Randall, 357 U.S. 513 (1958) ........... .. 16 iv V TABLE OF AUTHORITIES—-Continued Page Stachura v. Truzskowski, 763 F.2d 211 (6th Cir. 1985), reev’d and remanded on other issues sub nom. Memphis Comm. Seh. Dist. v. Stachura, 477 U.S. 299 (1986) ..................................... ..... 17 United States v. Data Translation, Inc., 984 F.2d 1256 (1st Cir. 1992) ............ ................................. 21, 22 Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993)___ 17, 19 Wolf el v. Morris, 972 F.2d 712 (6th Cir. 1992).... 19, 20 STATUTES 28U.S.C. § 1254(1) ................ ......................................... 1 42 U.S.C. § 1981............................................................. 23 42 U.S.C. § 1983 .................... ...................I...................... 2, 23 42 U.S.C. § 2000e et seq___________ _____________ 3 42 U.S.C. § 2000e-2 (a) ......... ..................................... 1 42 U.S.C. §2000e(b )............ ............................ ......... 1 Mo. Ann. St. § 168.114.1....................... ................ ........ 3 PETITION FOR A WRIT OF CERTIORARI OPINIONS BELOW The opinion of the United States Court of Appeals for the Eighth Circuit is reported at 147 F.3d 718 (8 th Cir. 1998), and is reprinted at App. la-15a. Judge Mc- Millian wrote an opinion dissenting from the denial of rehearing en banc, reported at 153 F.3d 904 (8th Cir. 1998) and reprinted at App. 16a-36a. The opinion of the District Court for the Eastern District of Missouri on issues decided prior to trial is reported at 936 F. Supp. 676 (E.D. Mo. 1996), and is reprinted at App. 37a-54a. JURISDICTION The Court of Appeals entered judgment on June 22, 1998 and denied rehearing and rehearing en banc on Sep tember 17, 1998. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED' The First Amendment to the United States Constitu tion provides in pertinent part that “Congress shall make no law . . . abridging the freedom of speech.” The Fourteenth Amendment to the United States Con stitution provides in pertinent part that: “[n]o State . . shall . . . deprive any person of life, liberty, or property without due process of law.” Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e(b), provides in pertinent part as follows: It shall be an unlawful employment practice for an employer . . . to discharge any individual, or other wise to discriminate against any individual with re spect to his compensation, terms, conditions, or priv ileges of employment, because of such individual’s race . . . . 2 The term “employer” means a person engaged in an industry affecting commerce . . ., and any agent of such a person. STATEMENT OF THE CASE A. Overview Petitioner Cecilia Lacks was an award-winning tenured teacher who had been employed for more than twenty years by Respondent Ferguson-Florissant Reorganized School District (“District”) when the District terminated her employment on March 23, 1995. The stated reason for the decision to discharge Lacks was that she had not disciplined students who, in response to a drama-writing exercise that Lacks had assigned, wrote and read aloud in the classroom from scripts in which the fictional characters created by the students uttered profanity. According to the District, in refraining from meting out discipline to the students, Lacks im properly failed to enforce a prohibition against profanity set forth in the District’s Student Discipline Code—a pro hibition that, prior to Lacks’ discharge, had not been applied or been understood to apply to profanity used in a work of fiction or creative writing, but only to profanity that students directed at other persons in real-life inter actions. Two claims are at issue in this Petition: (i) a First Amendment claim brought pursuant to 42 U.S.C. § 1983, on the theory that the termination was unconstitutional because Lacks was not on reasonable notice that the ex pressive activity for which she was terminated was pro hibited by District policy;1 and (ii) a Title VII claim 1 1 In addition to the First Amendment claim that is the subject of this petition, Lacks also presented to the jury a distinct First Amendment claim predicated on the theory that, even if she had received adequate notice, the District’s decision to terminate her was not reasonably related to legitimate pedagogical concerns. The jury decided in her favor on this claim, but the Eighth Circuit set the verdict aside. App. lla-12a. Certiorari is not sought as to this issue. 3 Drought pursuant to 42 U.S.C. § 2000e et seq., on the theory, inter alia, that supervisors who played crucial roles in the termination process were motivated by racial ani mus, and but for that racial animus, Lacks would not have been terminated.2 Both the First Amendment notice claim and the Title VII race discrimination claim were tried to a jury. On the notice claim, the jury found in favor of Lacks, an swering “no” to a special interrogatory that asked, “Did plaintiff have reasonable notice that allowing students to use profanity in their creative writing was prohibited?” On the Title VII claim, the jury was asked (i) whether Lacks had proven “by a preponderance of the evidence” that “plaintiff’s race was a motivating factor in her termi nation,” and (ii) whether the defendant had “proven by the preponderance of the evidence that defendant would have discharged Lacks regardless of her race.” The jury decided in Lacks’ favor on both questions, answering the first question “yes,” and the second question “no.” The District Court entered judgment for Lacks on these claims in accordance with the jury’s verdict. The Eighth Circuit, for reasons set forth infra at 13-14, reversed and ordered that judgment notwithstanding the verdict be en tered in favor of the District. Petitioner requested rehear ing en banc, which the Eighth Circuit denied over the dissent of Judges Theodore McMillian and Morris Shep pard Arnold. 2 Lacks also brought a state-law claim that her discharge violated the Missouri Teacher Tenure Act, Mo. Ann. St. § 168.114.1. The District Court decided that claim in her favor, see App. 44a-48a, but the Eighth Circuit reversed. App. 6a-9a. Lacks does not peti tion for certiorari as to that claim. This action originally was filed in state court but was properly removed by respondents. App. 5a. 4 B. Statement of the Facts 3 1. In October 1994, Lacks gave the students in her eleventh grade English class, who were studying a unit on drama, an assignment that required four groups of students to write plays about themes that were important to them, using dialogue natural to the characters created. Tr. 410.4 The students were then to read in the classroom from the scripts they had written, and those classroom presentations were to be videotaped so that the students could see themselves speak and thereby work to improve their oral presentation skills. Tr. 416. Lacks did not encourage the students to use profanity in the plays. Tr. 411. However, three of the four student groups prepared scripts touching on themes such as gang violence and inter-gang romances, and those scripts con tained a great deal of profanity, including the word “fuck,” as well as frequent uses of the word “nigger.” 5 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 High School, where Lacks taught, 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 witnessed a random shooting of a child by warring gangs.” Tr. 953. 3 Because the two claims at issue were decided in Lacks’ favor by a jury, the court below acknowledged that, on review, the court was required to credit the testimony of Petitioner’s witnesses and to accept as true all of the evidence adduced at trial that was favorable to Petitioner. App. 13a. We do the same in this State ment of Facts, 4 We cite to the trial transcript as “Tr.,” and to the transcript of the School Board hearing as “Hrg. Tr.” Trial Exhibits are cited as “Exh.,” and exhibits introduced at the School Board hearing are cited as “Hearing Exh.” 5 All of the students in Lacks’ English class were African- American, as was 98% of the student body of Berkeley High School. Tr. 1401. 5 2. A District policy— Policy 3043—required “all em ployees of the district,” including teachers, to “share re sponsibility for supervising the behavior of the students and for seeing that they meet the standards of conduct” set forth in the District’s “Student Discipline Code.” Exh. 96 at 55. The Student Discipline Code prohibited “[s jtudent be havior that is disorderly or unacceptable,” and it listed the following examples of such “behavior”: tardiness, unexcused absence, leaving school grounds without permission, cheating, fighting, theft, gam bling, use of tobacco products in unauthorized areas, forgery, littering, profanity, insubordination, refusal to identify self to school officials, verbal abuse, re fusal to comply with directions of staff, class disrup tion, inappropriate dress, obscene gestures, lying to school authorities, inappropriate physical contact be tween students, possession of glass bottles, and any other inappropriate behavior as defined by school officials. Id. at 109. 3. Prior to Lacks’ case, there were numerous instances, occurring over a period of many years while the Student Discipline Code was in effect, in which high school stu dents in the District, with the awareness of District ad ministrators, had used profanity in their creative writing. There were no cases, however, in which a District admin istrator had ever suggested that the Student Discipline Code applied to profanity in that context, much less were there any cases in which the District had imposed any discipline, either on the students involved or on the teachers. On at least two earlier occasions, students in Lacks’ classes had 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. Indeed, on one of those occa sions the administrator wrote a positive evaluation of the day’s lesson, stating that the lesson was “effective and in 6 teresting” and that he “was impressed by the fact that the students were not reluctant to share their writing,” which he attributed to the “supportive atmosphere [Lacks] cre ated in the class.” Tr. 513. On another occasion, one of Lacks’ students wrote a short story containing profanity, and, despite the profanity, the story was displayed without objection on the library wall. Tr. 378-79. On still another occasion, a student of another teacher in the District wrote a play called “Everything You Al ways Wanted to Know About Sex But Were Afraid to Try,” and named the characters Freddy Fuck, Peter Prick, Sally Slut, and Penny Prude. Tr. 2043-44. The assistant principal read the play and “just laughed about it”; he disciplined neither the student nor the teacher. Tr. 2044. (The teacher had given the student an “A” grade for the play.) In addition, Vernon Mitchell, the principal of Berkeley High School and the person who initiated the disciplinary proceedings against Lacks, did not discipline the students or the teacher involved in a 1992 student-written school- sponsored play that, by Mitchell’s own admission, contained profanity; on the contrary, Mitchell went on stage to publicly congratulate the students and the teacher after a performance of the play for parents and the community at large. Tr. 1380, 1383-86. In addition to profanity, that play, called “How Ya Livin’,” contained a depiction of a gang member desecrating the body of a victim of violence, as well as sexually suggestive dancing and a scene featur ing a student actor lewdly pulling on his crotch and re ferring to it as his “thang.” Exhs. 247, 248. The teacher who sponsored “How Ya Livin’,” Sharita Kyles, is an African-American, as is Mitchell. Lacks is white. 4. It was undisputed that Lacks diligently enforced the Student Discipline Code when she encountered students using profanity in their interactions with others. Tr. 451- 52, 1037. But the understanding not only of Lacks, but of other District teachers prior to Lacks’ case, and of administrators as well, was that the Student Discipline Code did not apply to profanity used by students in their creative writing. Thus, Karen Price, the Chairman of the English De partment at Berkeley High School, testified as follows in response to a question asking her to state her understand ing of the Student Discipline Code: A. I did not think it was related to creative writing or reading of literature. I thought it 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 student would be necessarily misbehaving because they in clude street language? A. I don’t think they are misbehaving. Q. What do you think they are doing? A. I think that they are trying to put words in a character’s mouth that reflect what kind of person they are writing about. . . . Q. Have you ever known of a teacher to be disci plined 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. Tr. 963-64 (emphasis added). Two District administrators testified to the same effect.6 Indeed, the only person who claimed to believe that the 6 Dr. Larilyn Lawrence, the District’s Curriculum Coordinator for Reading and Language Arts, testified as follows: Q. . . . [A] re you aware of any policy or rule in the Ferguson Florissant School District that prohibits teachers in the class room from allowing students to include street language in their creative writing? A. No, I am not. # * * * 7 [Continued] 8 Student Discipline Code applied to profanity in students’ classroom works was one of the administrators who made the decision to bring the Policy 3043 charge against Lacks. That administrator, Barbara Davis, stated that, as she read the Student Discipline Code, it prohibited a stu dent even from reading profanity aloud from a recognized work of literature as part of a classroom assignment. Tr. 1700; see also Hrg. Tr. 792. Davis admitted, however, that the Code never had been applied in the context of any classroom assignment prior to Lacks’ case. Tr. 1701. 5. The methodology according to which Lacks taught creative writing at Berkeley High School was one that she had employed during her entire career with the District— a methodology that, throughout that time, the District it self had endorsed and recommended to teachers of crea tive writing both within the District and nationwide. Tr. 345-46, 348, 350. Referred to at trial as the “student- centered” method, and originally developed in the 1960’s by noted educator James Moffett, this method’s central tenets, as summarized in guidelines distributed to teachers 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 be- 6 6 [Continued] 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. I t’s not just the back and forth of kids in the classroom without any assign ment attached. Tr. 1263-65. Dolores Graham, who served as a principal in the District for more than eleven years and as an assistant principal for longer, gave similar testimony. Tr. 1098-99. 9 moaning what’s not on the page, what’s wrong with what is there. Resist making judgments about the writing. Tr. 348; Exh. 195, pp. 4-5. As Lacks explained at trial, this method dictates that the teacher should not attempt to control the content and language of student creative works—particularly students’ initial creative efforts— [bjecause 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 dis appears. Students think they have no voice. Tr. 351. Lacks recounted a specific example of how, during the 1992-1993 school year at Berkeley, her use of the student- centered method led one student, Reginald, to progress during the semester from total non-participation in class room activities, to initial efforts at poetry that were highly disjointed and laden with profanity, to composing accom plished poems without profanity, including a poem that won the highest district-wide award for student poetry. Tr. 367J Expert witness testimony—including testimony from the Executive Director of the National Council for Teach ers of English—established that the student-centered method is widely used with success in secondary schools throughout the country, Tr. 1106, 1114-18, and that it is not unusual to see, particularly in first attempts at creative writing, profanity of the kind that appeared in the video- 7 7 Judge McMillian’s opinion dissenting from the order denying en banc rehearing in this case sets forth in full three of Reginald’s later poems, including the award-winning poem, and quotes exten sively from the trial testimony concerning how Lacks’ teaching method was successful in improving Reginald’s writing and getting him past the use of profanity. App. 23a-33a. 10 taped student drama exercises written by Lacks’ students. Tr. 1181. One expert in student play-writing, when asked about her reaction to the videotape, stated that “[tjhere was nothing surprising in that. The language was appro priate for the characters, and this is language that we have seen in classrooms across the country.” Tr. 1181. 6. The disciplinary process that led to Lacks’ termina tion was initiated by Principal Vernon Mitchell, who learned of the existence of the videotaped drama exercise in January, 1995, three months after the exercise had taken place. As Mitchell admitted at trial, he saw the drama exercise from the outset of his investigation in racial terms, viz, as “black students acting a fool and white folks videotaping it.” Tr. 1392. Mitchell testified that he used those words when he was telling one of Lacks’ African-American students, Everette, what it was that had “offended” Mitchell about the incident. Tr. 1393* Quite apart from his reaction to the videotape, there was evidence that Mitchell “had displayed signs of hos tility to white teachers at Berkeley because Mitchell be lieved that some white teachers did not care about the students.” App. 13a. See also Tr. 1492 (testimony from School Board member that there had been “several” com plaints from teachers to the effect that Mitchell was prej udiced against white teachers). And, as we have noted, Mitchell did not take any adverse action against Sharita Kyles, the African-American teacher who sponsored the production of “How Ya Livin’,” the student-written play that contained profanity and obscene gestures.8 9 8 Mitchell used similar racial terminology when speaking about the incident with District Curriculum Coordinator Larilyn Law rence. Tr. 1269. 9 The record also reflects that, 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 videotape to Lacks’ class and made anti-semitic remarks directed in part at Lacks, whom Mitchell knew to be -Jewish. Tr. 495. In response to an assignment from Lacks to write a journal entry 11 As the Eighth Circuit stated in the decision below, there was evidence at trial that the District’s Assistant Superintendent for Personnel, John Wright, who also was African-American, likewise viewed the videotaping inci dent in racial terms. App. 13a. It was Wright who con ducted an investigation of the taped drama exercises after Mitchell brought the matter to his attention, and Wright drafted the charges against Lacks that were presented to the School Board. 7. Under the Missouri Teacher Tenure Act, Lacks had a right to a pre-termination hearing before the School Board, and she exercised that right by requesting a hear ing. At the beginning of the hearing, the District announced that it was pursuing just one charge of misconduct: that Lacks had willfully violated School District Policy 3043 by failing to enforce the Student Discipline Code to dis cipline students who used profanity in their creative works.10 It was undisputed at the hearing, and it has relating to the day that the substitute teacher was present, a stu dent wrote a paper which said: We read out loud about Louis Farrakhan 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 [sic] 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, Lacks showed it to Mitchell and explained the circumstances under which it had been created. Tr. 496. Despite the profanity and racial hatred conveyed in the piece, Mitchell did not suggest that either the student or the sub stitute teacher be disciplined, Tr. 498, 501, nor in fact were they. to The District’s case was focused on the videotaped drama exer cises, but the District also contended that Reginald’s initial poems, see supra at 9, written in the 1992-1993 school, year, constituted 12 remained undisputed, that, under Missouri law, for a school district to terminate a tenured teacher on such a ground, it is necessary for the district to establish a “will ful” violation of a written regulation, which, in the case of Lacks, meant that the District had to prove “that Lacks violated the board policy prohibiting profanity, and that she knew that the board policy applied to the profanity used by her students.” App. 6a (emphasis added). At the Board hearing, as at trial, Lacks testified that she did not believe that the Student Discipline Code ap plied to profanity in student creative works, that no one had ever suggested to her that the Code was applicable in that context, and that she had never heard of any instance in which any student had been disciplined for using profanity in that context, let alone any teacher for allowing it. Hrg. Tr. 484, 630-31. And, as at trial, Lacks called to the stand teachers and administrators who testi fied that they likewise had not understood it to be a viola tion of any policy for a teacher to permit students to use profanity in their creative writing. Hrg. Tr. 813, 823, 845; see also App. 44a-47a. Lacks also introduced evi dence regarding Principal Mitchell’s disparate treatment of her and Sharita Kyles, Hrg. Tr. 212, 215, and Mitchell’s statement that what offended him about the videotape of Lacks’ students was that it was “black stu dents acting a fool and white folks videotaping it.” Hrg. Tr. 221. In its written decision terminating Lacks, the only evi dence cited by the Board in support of its finding that Lacks’ violation was “willful” was Mitchell’s testimony regarding warnings he claimed to have given Lacks in her capacity as faculty sponsor of the school newspaper, concerning the use of profanity in the paper. Exh. 217. Mitchell’s testimony on this subject was impeached in the Board hearing and was thoroughly discredited at trial.11 * ll violations of the Student Discipline Code, and that Lacks should have disciplined Eeginald for writing those poems. l l In the Board hearing, Mitchell testified that he had warned Lacks about the use of certain words in the newspaper; yet the But in any event, Mitchell did not even contend that he had told Lacks that students’ use of profanity in the newspaper—or in other written work—would constitute a violation of the Student Discipline Code}2 Although, as noted, Lacks raised the issue of Mitchell’s racial bias at the hearing, the Board members “never dis cussed any alleged racial discrimination” in their delibera tions. App. 14a. C. Proceedings in the Eighth Circuit 1. The Panel Opinion a. The First Amendment Notice Claim The jury answered “no” to the question whether Lacks had “reasonable notice that allowing students to use pro fanity in their creative writing was prohibited.” App. 9a. The Eighth Circuit, however, held that the jury was re quired to answer “yes.” In so holding, the Eighth Circuit specifically acknowledged that the jury was free to dis believe Mitchell’s testimony that he had warned Lacks 12 newspapers were introduced into evidence, and they did not contain any of the words Mitchell cited. See Hrg. Exh. 14. Mitchell’s memoranda to Lacks concerning the newspaper also were in evi dence at the Board hearing, and they made no mention of any con cern about profanity. See Hrg. Exhs. 36, 37. At trial, Mitchell was forced to admit that his testimony before the Board about the newspapers was inaccurate. Tr. 1363. 12 The District had a separate policy, applicable only to the news paper, which broadly required the newspaper’s faculty advisors to “monitor style, grammar, format, and appropriateness of mate rials,” and to “edit material considered obscene [or] libelous.” Exh. 96; 46a-47a n.l. If what Mitchell claimed to have told Lacks •—viz., that it was “inappropriate” for the student newspaper to include “profanity . . ., negative reflections on teachers, things like that,” Hrg. Tr. 174—could be understood as a reference to any particular policy of the District, that policy was the one applicable to the editing of the student newspaper, not the Student Discipline Code. See Hrg. Tr. 184-85 (testimony of Vernon Mitchell) (what Mitchell “mentioned about the paper [was] not only the profanity but just the inappropriateness of the materials”) ; Hrg. Tr. 174, 175, 178, 179, 182, 190-91, 240. 14 about profanity that he claimed had appeared in the school newspaper. App. 11a. Notwithstanding that— and notwithstanding the evidence canvassed above show ing that, prior to Lacks’ case, the Student Discipline Code had been understood by teachers and District administra tors as having no application to student creative works— the court of appeals held “as a matter of law” that, be cause the language of the Student Discipline Code “con tains no exception for creative activities,” App. 10a, Lacks “took the risk that the board would enforce the policy as written.” App. 11a. b. The Title VII Claim The Eighth Circuit also overturned the jury’s verdict in favor of Lacks on her Title YII claim. In so doing, the court acknowledged that the jury properly could have concluded that Principal Mitchell and Assistant Super intendent Wright were motivated by race in pressing charges against Lacks. App. 13a. And the court ac knowledged that the jury properly could have found that Mitchell was lying when he testified to the Board that he had warned Lacks about profanity in the school news paper. App. 11a. That testimony, as the court further acknowledged, was explicitly relied upon by the Board in finding that Lacks acted with the “willfulness” neces sary to sustain the termination of a tenured teacher for misconduct under Missouri law. App. 8a. Indeed, it was undisputed that the Board relied on no evidence other than Mitchell’s testimony to establish that point. But the Eighth Circuit held that the jury’s verdict that Lacks was terminated because of her race could not stand, because “Mitchell and Wright did not make the decision to terminate Lacks; that decision was made by the school board.” App. 13a. The court found it disposi tive that neither Mitchell nor Wright made any specific “recommendaftion]” in the Board hearing, and “the board made an independent determination as to whether Lacks should be terminated and did not serve merely as a con duit for the desires of school administrators.” App. 13a- 14a. 2. The Dissent From the Denial of Rehearing En Banc Judge MeMillian and Judge Morris Sheppard Arnold dissented from the Eighth Circuit’s denial of rehearing en banc. In Judge McMillian’s opinion in support of en banc rehearing, he reasoned that the Student Discipline Code “was not explicit with respect to [prohibiting profanity in] classroom creative assignments,” and that, “in light of evidence that profanity in other student creative works— including one student-written play—was apparently con doned,” it could not fairly be concluded as a matter of law that Lacks was on reasonable notice that “the pro fanity prohibition applied to creative writing assignments.” App. 22a. As Judge MeMillian saw it, upholding the termination of Lacks based on invocation of the Student Discipline Code in these circumstances implicated “issues of exceptional importance,” App. 16a, because a legal regime that would permit a teacher to be fired for trans gressing a policy that she justifiably “never even knew was there” would threaten to chill all teaching that might prove controversial, and would thereby threaten to “scare[] away” “all innovative and well-meaning teachers.” App. 34a, 36a. Judge MeMillian emphasized that he would have “no quarrel with a school policy that clearly and strictly pro hibits students from using profanity in all school-related activities,” including creative writing, but he concluded that the District here did not have such a policy, and therefore Lacks was, in essence, terminated because she did not “pick [her] way through a mine field of compet ing and conflicting expectations, and changing and elusive legal standards.” App. 35a. REASONS FOR GRANTING THE WRIT This case raises two recurring issues of exceptional im portance as to which this Court has not spoken and as to which the courts of appeal have issued inconsistent, and in some instances directly contradictory, decisions. The first question involves the nature and scope of the First Amendment doctrine that requires reasonable notice 15 16 before the government may punish a person—particularly a public school teacher—for her speech. The second question is that of employer liability under Title YII for an employment decision made by high level managers who are not themselves motivated by racial animus, but whose decision is brought about by the racial animus of other agents of the employer. Both questions, squarely presented in this case, warrant review by this Court. I. This Case Raises an Important Question That Has Divided the Circuits Concerning the Nature and Scope of the First Amendment Requirement That the Gov ernment Must Provide Teachers With Reasonable Notice as to What Speech Is Prohibited Before Dis ciplining Them for Their Expressive Activties. 1. This Court long has held that, “ ‘because First Amendment freedoms need breathing space to survive,’ ” the government may not penalize someone from engaging in speech unless it has provided notice sufficient to “clearly inform” the person as to what speech 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 re quirement of fair notice must be enforced with particular vigilance in cases involving the 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. * :f: * * 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 17 effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being pro scribed. 385 U.S. at 603-04. Although Keyishian involved the rights of faculty mem bers of public colleges, subsequent decisions have held that the requirement of clear notice applies equally to dis ciplinary actions taken against high school teachers for expressive activities. Shortly after Keyishian was decided, the First Circuit held in a pair of cases that the notice re quirement is essential in both settings. See Keefe v. Geanakos, 418 F.2d 359, 362-63 (1st Cir. 1969); Mailioux v. Kiley, 448 F.2d 1242, 1243 (1st Cir. 1971), aff’g 323 F. Supp. 1387, 1392 (D. Mass.) (Wyzanski, J.). More recently, the First Circuit reaffirmed its hold ings on this subject in Ward v. Hickey, 996 F,2d 448, 453-54 (1st Cir. 1993). And other courts as well have held that the notice requirement applies in the high school setting. See, e.g., Stachura v. Truzskowski, 763 F.2d 211, 215 (6th Cir. 1985), rev’d and remanded on other issues sub nom. Memphis Comm. Sch. Dist. v. Stachura, A ll U.S. 299 (1986). 2. The Eighth Circuit purported to apply the notice requirement in this case, App. 10a, but the court in fact cut the heart out of the doctrine, and adopted an ap proach directly at odds with that of other circuits, by treating the notice inquiry as an abstract exercise in linguistics that can be performed by examining a partic ular regulation in a vacuum. As we have noted, the jury specifically found that Lacks did not have “reasonable notice that allowing stu dents to use profanity in their creative writing was pro hibited.” The jury reached that result on a record that is replete with evidence that District administrators had reg ularly tolerated, and even applauded, student works that contained profanity, and that neither teachers nor admin istrators had understood the Student Discipline Code as applying to students’ creative writing. See supra at 5-8. 18 The court of appeals did not deny that the record con tained such evidence; and the court acknowledged that the jury was free to discredit the only testimony that, if believed, might tend to establish that Lacks was on notice that profanity was prohibited in student writing—the testi mony of Principal Mitchell concerning alleged use of pro fanity in the student newspaper. App. 11a. But the court dismissed all of the evidence of how the District’s policy had in fact been understood and applied, saying: Even so, the policy against profanity was explicit. . . . In acting as [Lacks] did, she took the risk that the board would enforce the policy as written. App. 11a.13 The Eighth Circuit thus held that, “as a mat ter of law,” App. 9a, the First Amendment notice require ment is satisfied as long as a written policy can linguisti cally be construed to prohibit the expressive activity at issue, no matter how strong the evidence may be that the individual who has been punished could not reasonably have understood the policy to be applicable. This holding creates a square conflict with the First Circuit’s decisions regarding the notice doctrine. In Keefe, for example, a school district sought to terminate a teacher for assigning to a class of high school students a magazine article containing the word “motherfucker” and for leading a classroom discussion in which the teacher said the word aloud. The school district claimed that the teacher was on notice that his conduct was pro hibited because there was a regulation in place that pro vided that “[tjeachers shall use all possible care in safe guarding the health and moral welfare of their pupils, discountenancing promptly and emphatically: vandalism, falsehood, profanity, cruelty, or other form of vice.” 418 F.2d at 362 n.10. The First Circuit determined never theless that the teacher was not on reasonable notice, be cause profanity had been tolerated in other educational 13 See also App. 10a (“The Student Discipline Code clearly pro hibits profanity and obscene gestures, and it contains no exception for creative aetivites,”) 19 contexts at the school and because the regulation did not appear to be “apposite” to the conduct at issue. Id. at 362. Thus, as the First Circuit recently reaffirmed in Ward, that Circuit takes the view that “t[h]e relevant inquiry is: based on existing regulations, policies, discussions, and other forms of communication between school administra tion and teachers, was it reasonable for the school to expect the teacher to know that her conduct was pro hibited?” 996 F.2d at 454 (emphasis added). The Eighth Circuit’s decision here also is in conflict with the decision of the Ninth Circuit in Cohen v. San Benardino Valley College, 92 F.3d 968 (9th Cir. 1996), cert, denied, 117 S. Ct. 1290 (1997). There, the court held that it was impermissible under the First Amendment for officials of a public college to apply a “[pjolicy’s nebulous outer reaches to punish teaching methods that [the teacher] had used for many years,” when those meth ods “had apparently been considered pedagogically sound and within the bounds of teaching methodology permitted at the College” prior to the adverse employment act at issue. Id. at 972. In reaching that conclusion, the Ninth Circuit did not suggest that the college’s policy was by its terms inapplicable to the teacher’s speech. Cases in other contexts besides public education also have rejected the Eighth Circuit’s notion that, where First Amendment activity is at issue, a person must “t[ake] the risk that the [government] would enforce [a] policy as written,” App. 11a, regardless of the circumstances that would lead a reasonable person to think that the policy would not be so applied. Indeed, the approach taken by the court below has been rejected even in the prison context, where the notice doctrine is most circum scribed. Thus, in Wolf el v. Morris, 972 F.2d 712 (6th Cir. 1992), the Sixth Circuit held that, although a prison regulation required inmates to obtain prior approval from the warden before commencing any “group organizing activity,” prison officials transgressed the notice require 20 ment when they disciplined inmates who had circulated a petition without obtaining such approval, because, at the prison in question, “inmates . . . ha[d] been allowed to circulate numerous petitions over the years while the rele vant regulations were in force” without obtaining prior approval, and the plaintiffs therefore “had no reason to believe that they were engaging in activity prohibited by prison regulations when they circulated the petitions.” Id. at 717. The Fifth Circuit likewise has held that actual enforce ment practices under a government regulation or policy must be considered in determining whether an individual was on reasonable notice that her expressive activities might be found to constitute a violation, even where the terms of the regulation or policy might appear to prohibit those activities: Over time—indeed, probably fairly quickly—certain patterns of enforcement and tacit understandings will develop. This “less formalized custom and usage,” Parker v. Levy, 417 U.S. 733, 754 (1974), will clarify much of the inevitable imprecision. Supreme Court decisions strongly suggest that the authorities will not be permitted to prosecute conduct permitted by those understandings, see, e.g., id.; Cox v. Louis iana (II), 379 U.S. 559, 568-73 (1965); Raley v. Ohio, 360 U.S. 423 (1959), even if it is apparently proscribed by the ordinance itself. “Deeply embedded traditional ways of carrying out state policy . . . are often tougher and truer law than the dead words of the written text.” Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 369 (1940). International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 831 (5th Cir. 1979) (emphasis added). 3. The essential fallacy that underlies the Eighth Cir cuit’s contrary reasoning is the notion that, when a par ticular regulation or prohibition contains “no exceptions,” it naturally should be read to apply to every activity that conceivably could be covered by its literal language. Even putting aside First Amendment concerns—and even 21 in the absence of evidence regarding the actual applica tion and interpretation of a policy such as was presented in this case—that is not always the natural way to read a regulation. As then-judge Breyer explained in United- States v. Data Translation, Inc., 984 F.2d 1256, 1261 (1st Cir. 1992): Exaggerating to explain our point, we find the Gov ernment’s interpretation a little like that of, say, a park keeper who tells people that the sign “No Ani mals in the Park” applies literally and comprehen sively, 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. In the present case, a teacher reading a Disciplinary Code applicable to student “behavior,” and covering such matters as “theft, gambling . . ., littering . . . [and] pos session of glass bottles,” see supra at 5, cannot fairly be expected to assume—-in the face of extensive contrary evidence—that classroom creative writing is part of the “behavior” addressed by the Code. Whatever may be true in other contexts, where the issue of notice arises in the context of First Amendment activity, the Eighth Circuit’s approach is entirely out of place, and cannot be reconciled with the teaching of Keyishian and the holdings of other circuits. The crucial under standing that has guided this Court’s recognition of rea sonable notice as a First Amendment requirement, par ticularly in the sphere of public education, is the impor tance of ensuring that individuals not be induced by fear of possible penalties to “steer far wider of the unlawful zone” than the government actually intends or may prop erly demand. Keyishian, 385 U.S. at 604, quoting Speiser, 357 U.S. at 526. One circumstance in which that problem comes to the fore is where, as in Keyishian, a regulation uses vague terms. But the same problem can arise from “the exhaustiveness of the . . . language [of a 22 policy if read] literally,” Data Translation, 984 F.2d at 1261, particularly where the government’s actual enforce ment of the policy suggests a narrower applicability than a literal reading of the policy might permit. If an indi vidual confronted with a vague policy, or with a policy that has not been applied literally, is subject to punish ment unless he or she acts in accordance with the most expansive possible reading of the policy, the result will be the very chilling effect that the First Amendment notice requirement seeks to prevent. 4. The context in which the notice issues arises in this case is both a recurring one and one that provides a par ticularly cogent illustration of the point just made. The Student Discipline Code involved in this case is a garden- variety code of student conduct such as exists in virtually every school district. See supra at 5 (quoting text of the Code). It certainly is not the case that every school dis trict that prohibits swearing in the hallways would wish to have its teachers discipline students for any and all use of profanity in their creative works: undoubtedly many districts would agree with the testimony of the Ex ecutive Director of the National Council for Teachers of English, Tr. 1106, 1114-18, that such an approach would be educationally unsound. Yet the plain import of the Eighth Circuit’s decision is that, in every school district that has a student discipline code, a teacher “t[akes] the risk” of punishment if she does not treat classroom cre ative writing as subject to the same prohibition of the use of profanity as applies to hallway cursing. Thus, the Eighth Circuit’s ruling on the notice issue conflicts with the decisions of other circuits, and, if not reversed by this Court, is likely to induce teachers across the country to “steer far wider of the unlawful zone” by prohibiting or punishing student speech that, in many instances, school officials would not actually wish to pro hibit. Certiorari should be granted to review this ruling. 23 II. This Case Raises an Important Question That Has Divided the Circuits Concerning Employer Respon sibility Under Title VII for Employment Actions Infected by Discrimination on the Part of Supervisors Below the Rank of Final Decisionmaker. 1. It is common in both the public and private sectors for an employer to make certain personnel decisions— including in particular promotions and terminations— through a process in which various agents of the employer play different roles. Often the ultimate decision is made by high ranking managers or supervisors, but the decision is strongly affected by the actions of supervisors at lower levels in initiating charges or recommendations, providing information or evaluations, and otherwise participating in the decisionmaking process. Where the ultimate de cisionmakers had no impermissible motive, but supervisors who played a crucial role in the process acted out of racial animus or some other unlawful purpose, the ques tion whether to impose liability on the employing entity gives rise to difficult issues that have commanded this Court’s attention under a number of different federal civil rights statutes. For example, in City of St. Louis v. Praprotnik, 485 U.S. 112 (1988), the Court held that municipalities are not liable under 42 U.S.C. § 1983 for wrongful employ ment actions taken at the instance of an official who lacks final policymaking authority over such actions, even if the subordinate official’s actions are simply rubber-stamped without any substantive review by the final decision maker. See id. at 128 (plurality opinion); id. at 137 (opinion of Brennan, J., concurring on this point). The Court adopted similar principles of employer responsi bility under 42 U.S.C. § 1981 in Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737-38 (1989). More recently, in Gebser v. Lago Vista Indep. Sch. Dist., 118 S. Ct. 1989 (1998), the Court held that, under Title IX of the Civil Rights Act, a school district is legally responsible for sexual harassment of a student by an employee only where an official with the authority to in stitute corrective measures on the employer’s behalf knows about the wrongful conduct and acts with “deliberate indifference” to it—a standard the Court noted was con sistent with its standard of employer responsibility under § 1983. 118 S. Ct. at 1999. In Gebser, however, the Court was careful to emphasize that Title VII is governed by different principles of em ployer responsibility, inasmuch as Title VII “explicitly defines ‘employer’ to include ‘any agent’ ” of an em ployer for the purpose of its prohibition against acts of employment discrimination undertaken by an “em ployer.” Id. at 1996. The Court has not yet addressed under Title VII the question of employer responsibility for decisions that are made by unbiased final decision makers but that have been infected in one way or another by the discriminatory animus of supervisors at a lower level. The Court’s recent decisions in Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), illus trate that the apparent simplicity of Title VII’s statu tory employer-responsibility language is not matched by a simplicity of application where the wrongfulness of the behavior in question stems from, the dereliction of agents who are not at the top of the employer’s hierarchy. But the analysis and holdings in Ellerth and Faragher are con fined to the unique context of sexual harassment, and do not provide clear guidance with respect to the very differ ent questions presented by the numerous cases, such as this one, in which high ranking officers of an entity have taken adverse employment action without any discrim inatory intent, but the discriminatory animus of subordi nate agents has affected the decisionmaking process— whether because those agents applied racially discrimina tory standards in determining whether to initiate investi gations of possible employee misconduct in the first in stance, see, e.g., Simpson v. Diversitech, 945 F.2d 156 (6th Cir. 1991); or because they presented false or dis 24 25 torted accounts of the employee’s conduct or performance to the final decisionmaker, see, e.g., Griffin v. Washing ton Convention Center, 142 F.3d 1308 (D.C. Cir, 1998); Gusman v. Unisys Corp., 986 F.2d 1146 (7th Cir. 1993); Roebuck v. Drexel University, 852 F.2d 715 (3rd Cir. 1988); or because they distorted the decisionmaking proc ess in some other racially-motivated manner. 2. In the absence of guidance from this Court, the decisions of the courts of appeal in this area have been inconsistent in their results and unclear as to their under lying rationales. Many courts have simply assumed that if a supervisor’s animus plays any causative role in an employee’s termina tion, the employer is liable for the consequences of the termination, notwithstanding the innocence or good faith of the employer’s final decisionmakers. For example, in Simpson v. Diversitech, supra, an African-American em ployee was discharged after having committed three sep arate disciplinary offenses. The investigation of the second of those three offenses was initiated out of racial ani mosity by a supervisor, but that supervisor played no role either in the final decision to discipline the employee for that particular offense or in the later decision to terminate the employee for the combined effect of having committed three offenses. Even though those decisions were all made by high-level managers who made an “independent assessment and judgment” of the facts giving rise to the charges of misconduct, the Sixth Circuit found the em ployer liable for the employee’s discharge because, but for the supervisor’s animus, the employee would not have been reported for the second offense and would not have been terminated as a result of the third offense. 945 F.2d at 159. Judge Cornelia Kennedy dissented from the Sixth Cir cuit’s decision in Simpson, rejecting the proposition that liability flows to the employer under Title VII whenever a supervisor’s discriminatory motive is the “but for” cause of an adverse employment action. Id. at 162. According to Judge Kennedy, liability should attach to an employer under Title VII only when the persons who actually made the termination decision acted out of a discriminatory motive. Id. at 163. The District of Columbia Circuit’s recent decision in Griffin is to the same effect as Simpson. In Griffin, the final decisionmaker consulted with several of her subordi nates in addition to the biased supervisor, and with the employee’s union representative as well, before deciding to fire the employee. The court of appeals held that, even though the final decisionmaker did not accord automatic deference to the supervisor—indeed, the decisionmaker had rejected an earlier recommendation by the supervisor that the employee be terminated—the employer never theless was not entitled to judgment as a matter of law, because the biased supervisor was the decisionmaker’s “chief source of information” about the employee. 142 F.3d at 1311. The Third Circuit’s decision in Roebuck goes even farther in finding employer responsibility. Under the multi-level tenure review process followed by the defend ant university in that case, “each successive evaluator performed a de novo review of [the] candidacy,” yet the court held that the finder of fact was entitled to conclude that the university’s decision to deny tenure to the plaintiff was tainted by discrimination at a low level in the process, because each evaluator “considered the reports and recom mendations of each previous evaluator.” 852 F.2d at 727. 3. In sharp contrast to the decisions of other circuits, the court below held that the School District was insulated from liability for any racially motivated actions taken by Principal Mitchell or by Assistant Superintendent Wright in connection with the decisionmaking process that re sulted in Lacks’ termination, because the Board did not itself act out of racial animus, and the Board did not “defer” to any “recommendation” made by Mitchell or Wright. App. 13a-14a. The court found it conclusive that “the school board never discussed any racial discrim- 26 ination against Lacks by school administrators,” and that “the board made an independent determination as to whether Lacks should be terminated.” App. 14a. In reaching this result, the Eighth Circuit did not pur port to determine that the jury lacked sufficient evidence for its specific findings that Lacks would not have been terminated but for her race. See supra at 3 (quoting the special interrogatories answered by the jury on this point). As we have noted, Lacks could not be terminated unless the Board found that she “willfully” violated Dis trict policy; Mitchell’s testimony was the sole evidence on which the Board relied in finding willfulness; Mitchell’s testimony was false; and there was evidence from which the jury could find that Mitchell was racially motivated. The jury therefore properly could have found that, but for the racially-motivated false accusations of Principal Mitchell, the Board would not have found Lacks to have engaged in any willful violation, and would not have termi nated her. The jury also properly could have found that, but for the racial animus of Mitchell and Wright, who conducted the investigation into Lacks’ conduct and drafted the charges against her, charges never would have been brought to the Board in the first place. The decision below does not purport to conclude that the jury could not properly have made such findings on this record. Rather, the Eighth Circuit’s holding is that, as a matter of law, the District cannot be held liable in this case because the Board itself was not biased, and Mitchell and Wright did not make a formal recommendation that was rubber-stamped by the Board. App. 13a-14a. Under Praprotnik and Jett, that rationale would be defensible if this case were brought under §§ 1983 or 1981. But the decision below offers no explanation as to how Title VII’s very different statutory language admits of the approach the court here adopted. In explaining its decision, the court cited Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990), in which, after ruling in favor of the plaintiff on the ground that a final 27 28 decisionmakers lack of a discriminatory animus is not sufficient to insulate an employer from liability under the Age Discrimination in Employment Act where the deci sionmaker’s review of the statements of a biased super visor is “perfunctory,” id. at 405, the Seventh Circuit went on to suggest in dicta that an employer should be insulated from liability if its decision to terminate the employee is ‘independent,” id. at 406, The Shager court did not elab orate on what qualifies as an “independent” decision for this purpose, except to say that blind deference, in the form of a “rubber stamp” review process, does not qualify. Id. Judge Posner’s opinion in Shager is the only court of appeals decision besides this one to suggest possible lim iting principles for employer liability in a case of this nature; but, like the decision below, Shager neither articu lated a clear standard of employer liabilty nor explained how the standard applied was derived. Whether or not the decision below is consistent with Shager,14 it clearly is in conflict with the decisions of the 14 14 In Shager, the court reversed a grant of summary judgment in favor of the employer on the basis that a reasonable jury could find the following: that the employee’s supervisor was biased against older workers; that the supervisor submited a report to the employer’s final decisionmaking committee in which he portrayed the employee’s performance in the “worst possible light” ; that the supervisor’s account of the employee’s performance in the report was facially “plausible” ; and that the committee “was not con versant with the possible age animus that may have motivated” the supervisor’s report. Id. at 405 (emphasis added). The phrase in italics appears to presuppose that a properly functioning decision making body “conversant” with the evidence of a supervisor’s animus must, at a bare minimum, explore the possible effect of that animus on the credibility of the supervisor’s representations re garding the employee before accepting the supervisor’s version of disputed events as true. That did not happen in this case. Here, as the court below stated, the evidence showed that the Board “never discussed any alleged racial discrimination” in its deliberations. App. 14a. That fact, far from relieving the employer of liability under the ration ale of Shager as the court below appeared to believe, id., instead more firmly suggests a basis for liability under that rationale. 29 Third, Sixth, and District of Columbia Circuits in Roe buck, Simpson, and Griffin, supra. In Roebuck and Grif fin, reliance by the final decisionmaker on facts filtered through a biased subordinate was held sufficient to give rise to employer liability, see supra at 26; and in Simpson, the sole fact that the supervisor initiated the charges out of racial animosity was deemed sufficient to render the em ployer liable, see supra at 25. Here, Principal Mitchell gave crucial false testimony on which the Board relied; and both Mitchell and Assistant Superintendent Wright were responsible for initiating the charges against Lacks and moving them forward. Thus, the conflict between the decision in this case and Roebuck, Simpson, and Griffin could not be clearer. 4. Not only do the circuit court decisions on the ques tion presented here reach inconsistent results, but the opinions that the courts have rendered in this area of the law are sketchy and conclusory in their discussions of the employer responsibility issue, with the result that no com prehensive framework of analysis has emerged that can aid the decision of future cases. In that regard, the deci sion below is typical: the court reached its conclusion without any discussion of how its view of the law could be derived from the language and purposes of Title VII or from any principles of agency law. This lack of a comprehensible analytic framework can only be expected to compound the existing confusion in the law, leaving employers and employees uncertain as to their responsibilities and their rights under Title VII, and resulting in decisions that cannot be reconciled in any principled way.15 In some cases, like Roebuck, Simpson 15 Indeed, in the short time since the Eighth Circuit rendered its decision in this case, the confusion in the law has been further compounded by that court’s 2-1 decision in Kramer v. Logan County School District No. R-l, 157 F.3d 620 (8th Cir. 1998), where the court upheld a Title VII jury verdict against the employer school district, even though the employee had a full hearing before an unbiased school board before she was terminated. The dissenting 30 and Griffin, the employer will be held liable even though the ultimate decisionmaker acted without racial animus and made an independent judgment; in other cases, like this one, an employee who would not have been terminated but for the racially motivated actions of an agent of the employer will be left without redress. Certiorari should be granted so that this Court can clarify the law on this important and recurring question. CONCLUSION For the foregoing reasons, a writ of certiorari should issue to decide both questions presented in this Petition. Judge in Kramer, who sat on the panel in the case sub judice, found the two cases to be indistinguishable. Id. at 629 (“Our recent precedent in Lacks demands that we set aside the jury’s verdict.” ) The majority opinion by Judge Limbaugh, on the other hand, did not even cite the decision in this case. Judge Richard Arnold, who wrote the opinion below, penned a separate concurring opinion in Kramer for himself only, in which he purported to reconcile Kramer and Lacks on the basis that, in his view, “ [t]he evidence of bias on the part of the administrators in Lacks was very weak, and the misconduct of the teacher (or what the board regarded as mis conduct) was egregious.” Id. at 627. Judge Arnold’s effort in Kramer to explain the result in this case only adds to the confusion in the law. No court of appeals has sug gested that, where there is sufficient evidence of bias on the part of a supervisor to create a jury question—and the court’s opinion below is predicated on the acknowledgement that there was such evidence with regard to Mitchell and Wright—the reviewing court’s perception of the strength of that evidence somehow becomes a factor in determining whether the employer may be held liable for the supervisor’s act. Nor has any court found the perceived “egre giousness” of the employee’s alleged misconduct to be a relevant—• much less a dispositive—factor in that regard. If the decision below were read with the gloss subsequently placed on it by Judge Arnold in Kramer, the lower-court law would only devolve into an even greater state of disarray. Respectfully submitted, J eremiah A. Collins * Leon Dayan Bredhoff & Kaiser, P.L.L.C. 1000 Connecticut Ave., N.W. Washington, D.C. 20036 (202) 833-9340 * Counsel of Record APPENDICES la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 97-1859EM Cecilia L acks, Appellee, F erguson R eorganized School D istrict R-2, ________ Appellant. On Appeal from the United States District Court for the Eastern District of Missouri Submitted: January 12, 1998 Filed: June 22, 1998 Before RICHARD S. ARNOLD,1 Chief Judge, WOLL- MAN and HANSEN, Circuit Judges. RICHARD S. ARNOLD, Chief Judge. In this case Ferguson-Florissant Reorganized School District (“the school board”) appeals the District Court’s grant of summary judgment in favor of the plaintiff, Cecilia Lacks, on Lacks’s claim under Missouri law that her termination by the board was not supported by sub- l The Hon. Richard S. Arnold stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998. He has been succeeded by the Hon. Pasco M. Bowman II. 2a stantial evidence. The school board also appeals a jury verdict in favor of Lacks on First Amendment and race discrimination claims. 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. I. Cecilia Lacks began teaching at Berkeley Senior Fligh School in the fall of 1992 after teaching at other schools in the same school district since 1972. Lacks taught English and journalism classes, and she sponsored the school newspaper. In October 1994, Lacks divided her junior English class into small groups and directed them to write short plays, which were to be performed for the other students in the class and videotaped. The plays written by the students contained profanity, including the repeated uses of the words “fuck,” “shit,” “ass,” “bitch,” and “nigger.” When the plays were videotaped, these words were used more than 150 times in approximately forty minutes. Hearing Exhibits 12 and 13. Lacks later admitted that the plays contained an unusual amount of profanity, and one of her witnesses later described the use of profanity in the plays as “extreme,” “disgusting,” “up setting,” and “embarrassing.” Hearing Tr. at 271, 277, 439. Lacks was aware of the content of the plays before they were performed, because she had previousy reviewed at least one of the scripts and had attended rehearsals of the plays the day before. Hearing Tr. at 437. On October 10, the students performed their plays and were videotaped at the direction of Lacks. Two other school district em ployees were also present during the videotaping of the plays: Donna Clark, a part-time teacher, and Mike Minks, an audio-visual technician. Clark and Minks eventually received letters of reprimand from the school administra 3a tion for allowing the students to use profanity. Hearing Tr. at 167, 233. The following January, as a result of complaints by one of Lacks’s students, the existence of the videotapes came to the attention of Vernon Mitchell, the principal of Berkeley High School. Mitchell initiated an inquiry into the matter, and he and two school district administrators met with Lacks and her union representative twice over the next two weeks. During the investigation, the adminis trators learned that as part of a poetry-writing exercise, Lacks had permitted a student to read aloud in a class room two of his poems which contained profanity and graphic descriptions of oral sex. Hearing Tr. at 386-88, 596-97. Following the investigation, Dr. Robert Fritz, the dis trict superintendent, formally charged Lacks with “willful or persistent violation of and failure to obey [the school district’s] policies” under Mo. Ann. Stat. §168.114 (1991 & Supp. 1998). Appellant’s App. at 901. Fritz alleged that Lacks violated several school board policies and recommended her termination by the school board. Lacks requested a hearing, and the school board heard testimony from Lacks and fifteen other witnesses over five evenings in early March 1995. The school board also examined numerous exhibits and viewed the videotaped performance of the students’ plays. At the hearing, the school board narrowed its earlier allegations to one charge: violation of board policy 3043, which requires teachers to enforce the section of the Student Discipline Code which prohibits profanity.2 On March 23, the board issued a * I 2 The Ferguson-Florissant Student Discipline Code prohibits two types of student behavior. Under the Student Discipline Code, Type I behavior includes serious misconduct, such as drug use, theft, or the use of firearms or explosives, which may result in student suspension or expulsion. Type II behavior includes behavior “that is disorderly or unacceptable but does not violate Type I standards . . . .” Under the Code, Type II behavior includes profanity and 4a decision which found that Lacks was aware of the school board’s policy preventing profanity, that she could have chosen teaching methods which prohibited profanity, and that her failuure to do so constituted a “willful and per sistent violation] of Board policy to a degree that cannot be . . . tolerated.” Appellant’s App. at 905. Based on its findings, the school board terminated Lacks’s teaching contract. In May 1995, Lacks brought suit in a Missouri state court, seeking judicial review of the school board’s deci sion under Mo. Ann. Stat. § 168.120 (1991 & Supp. 1998). She also alleged that the school board violated her due process rights under the United States and Missouri Constitutions, violated her rights under the First Amend ment and 42 U.S.C. § 1983 (1994), and discriminated against her on the basis of race in violation of Missouri law and Title VII of the federal Civil Rights Act. The school board removed the entire case to the District Court pursuant to 28 U.S.C. § 1441 (1994). The District Court granted the school board’s motion to dismiss Lacks’s due process claims for failure to state a claim upon which relief could be granted, but it denied the school board’s motion to dismiss Lacks’s First Amendment claim. The District Court also entered partial summary judgment in favor of Lacks on her claim for review of the school board’s termination of her teaching contract. See Lacks v. Ferguson Reorganized School District R-2, 936 F. Supp. 676 (E.D. Mo. 1996). In its order, the District Court held that Lacks did not willfully violate board policy 3043, because she believed that profanity was permitted in the context of creative expression in the classroom. obscene gestures, and a student who engages in Type II behavior is subject to a verbal reprimand, loss of class or school privileges, special work assignments, change of class schedule, or temporary separation from peers. Appellant’s App. at 250-51. There are no written exceptions under the Student Discipline Code which permit students to engage in Type II behavior. Id. at 682-83. Accordingly, the District Court awarded Lacks reinstatement with back pay, attorneys’ fees, and costs. The parties proceeded to trial in November 1996 on Lacks’s First Amendment and race discrimination claims. The school board moved for judgment as a matter of law at the close of Lacks’s case and its own case, and the Dis trict Court denied the motion both times. The District Court submitted the case to the jury, which returned a verdict in favor of Lacks for $500,000 on the First Amendment claim and $250,000 on the race discrimina tion claim. The school board now appeals. II. We can easily dispose of the school board’s argument that the District Court improperly allowed the board to remove the case because it lacked jurisdiction to review the school board’s decision under the Missouri Adminis trative Procedure Act. In City of Chicago v. International College of Surgeons, 118 S. Ct. 523 (1997), the Supreme Court held that a federal district court properly exercised jurisdiction over a case containing claims for on-the- record review of local administrative findings as well as claims that a local administratitve action violated federal law. Id. at 530. The school board recognized in its brief, filed before the Supreme Court decided City of Chicago v. International College of Surgeons, that “[t]he case at bar is in a procedural posture identical to the case considered in International College of Surgeons.” Appellant’s Br. at 15. Accordingly, we hold that the District Court properly allowed the school board to remove this case. III. A. Under Missouri law, when a school board terminates a contract with a teacher under Mo. Ann. Stat. § 168.114, 6a including termination for the willful or persistent violation of a school board regulation, the teacher may appeal the school board’s decision to a state circuit and seek judicial review of the school board’s decision. The court must affirm the decision of the school board unless the decision (1) violates a constitutional provision; (2) is made in excess of statutory authority or jurisdiction; (3) is un supported by “competent and substantial evidence upon the whole record”; (4) is made for any other reason un authorized by law; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary, capricious or un reasonable; or (7) involves an abuse of discretion. Mo. Ann. Stat. § 536.140 (1988 & Supp. 1998). This scope of review is limited. The reviewing court must affirm the school board if the board “reasonably could have reached the decision it did.” Hudson v. Wellston School District, 796 S.W.2d 31, 33 (Mo. App. 1990). 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. Id. The de termination of the credibility of the witnesses is a function of the school board, not the reviewing court. Orihals v. Special School District, 762 S.W.2d 437, 439-40 (Mo. App. 1988) (citations omitted). The District Court granted summary judgment in favor of Lacks because it found insufficient evidence in the record that Lacks “willfully or persistently” violated board policy 3043. Lacks, 936 F. Supp. at 680. The parties agree with the District Court that proof of “willful or persistent” violation is twofold: The school board must prove both an intent to act and an intent to violate or disobey a particular regulation. Lacks, 936 F. Supp. at 680 (citing Ortbals, 762 S.W.2d at 440). In other words, in order to prevail the school board must prove that Lacks violated the board policy prohibiting profanity, and that she knew that the board policy applied to the pro fanity used by her students. After a careful review of the evidence, we hold that the record contains sufficient evi dence for the school board to have concluded that Lacks willfully violated board policy. Lacks admitted that she allowed students to use pro fanity in the classroom in the context of performing the plays they had written and reading aloud the poems they had composed. Hearing Tr. at 386-88. At the hearing, and in her brief, Lacks defended this practice by arguing that she thought that the board’s policy on profanity applied only to “student behavior” and not to students’ creative assignments. Id. at 484-86. She also argued that her teaching method, which she describes as the “student- centered method” and which she explained at length at the hearing, required her to allow her students creative freedom, which included the use of profanity. Id. at 372- 78. Lacks could not say with certainty that she would be able to teach at Berkely High School if her students were not given the freedom to use profanity in their creative activities. Id. at 560-64. As evidence that Lacks believed that the anti-profanity policy did not apply to students’ creative assignments, the District Court noted that testi mony at the hearing indicated some confusion within the school district as to whether reading aloud literature which contained profanity might violate the school board’s pro hibition on profanity. Lacks, 936 F. Supp, 682. For example, Larilyn Lawrence, a curriculum coordinator for language arts at the school district, believed that a video taped production of a play with students using profanity could fall within acceptable course parameters. Hearing Tr. at 840-43. On the other hand, Barbara Davis, the assistant superintendent for curriculum instruction, testi fied that teachers in the school district should not allow students to read aloud profanity contained in literary works. Id. sd 192. The school board also heard testimony from Lacks’s principal, Vernon Mitchell, that he told Lacks that pro fanity was not permitted in the school newspaper. Mitchell 8a testified that he specifically spoke to Lacks in 1993 about profanity in the school newspaper, and told her that use of profanity in the newspaper was not allowed. Hearing Tr. at 172-73, 240. Mitchell said that he had reviewed a draft of the newspaper and was concerned that the students were including profanity in the paper by writing “S blank blank T” and “F blank blank K” rather than writing every letter of the profane words. Id. at 173, 234, 249. Mitchell testified that he discussed the use of profanity in the news paper with Lacks “[t]wo or three times.” Id. at 240. Mitchell also noted that signs posted in Lacks’s classroom read “No Profanity.” Id. at 250. When the board issued its opinion terminating Lack’s contract, it based its deci sion in part on its finding that Lacks had been warned about the use of profanity by Mitchell. Appellants’ App. at 904. Lacks claimed that Mitchell never warned her about the use of profanity in the newspaper. Hearing Tr. at 413. However, under Missouri law, assessing the credibility of witnesses is the function of the school board, not the reviewing court. See Ortbals, 762 S.W.2d at 439-40. Be cause the school board heard testimony that Lacks was directly warned by the principal in her school that includ ing “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. While Lacks did produce some evidence that confusion existed in the school district as to the profanity policy, and while she denied that she had been warned about it, we must read the record in the light most favor able to the school board’s decision, together with all reasonable inferences. Hudson v. Wellston School District, 796 S.W.2d at 33. The policy prohibiting profanity was explicit and con tained no exceptions. It was not ambiguous. The board 9a was free to find that Mitchell gave Lacks an express and particularized direction about the student newspaper. We think it was not unreasonable for the board to treat student writing for the newspaper and student writing for the class as alike. Isolated instances of profanity had been overlooked or tolerated in the past, but what went on in Lacks’ classroom went far beyond the reading aloud of a novel containing the occasional “damn.” The board might have chosen a lesser form of discipline, especially in view of Lacks’s long and devoted service. It was not required to do so by law. We hold that the board’s decision was reasonable and supported by substantial evidence on the record as a whole. The judgment in the plaintiff’s favor on this claim must be reversed. B. When the jury returned a verdict in favor of Lacks on her First Amendment claim, it provided answers to two interrogatories posed by the District Court’s instructions. Under the District Court’s instructions, answering “no” to either of the interrogatories allowed Lacks to prevail on the First Amendment claim. With respect to the first interrogatory—“Did [Lacks] have reasonable notice that allowing students to use profanity in their creative writing was prohibited?”—the jury answered “no.” With respect to the second interrogatory—“Did defendant school dis trict have a legitimate academic interest in prohibiting pro fanity by students in their creative writing, regardless of any other competing interests?”—the jury also answered “no.” Appellant’s App. at 341. The District Court sub sequently entered judgment in favor of Lacks with respect to her First Amendment claim. We reverse and hold, as a matter of law, that the answer to both of those questions was “yes.” Lacks argued at trial and on appeal that she was acting as a facilitator for her students’ speech, and that, under First Amendment law, she cannot be punished for not prohibiting her students’ use of profanity unless she was 10a provided with reasonable notice that profanity was pro hibited in students’ creative exercises, and unless the pro hibition on profanity in creative activity served a legiti mate academic interest. At least one court has held that, under the First Amendment, a school district must pro vide a teacher with notice as to what types of expression are prohibited in a classroom before it holds the teacher responsible for failing to limit that type of expression. See Ward v. Hickey, 996 F.2d 448, 452 (1st Cir. 1993) (citing Keyishian v. Board of Regents, 385 U.S. 589 (1967)). We are satisfied that Lacks was provided with enough notice by the school board that profanity was not to be allowed in her classroom, whether in the context of a creative exercise or not. Lacks testified at trial that she understood that, under her contract with the school dis trict, she was required to enforce the Student Discipline Code, and she testified that she was familiar with the rules and policies of the school board. Trial Tr. at 562- 63. The Student Discipline Code clearly prohibits pro fanity and obscene gestures, and it contains no exception for creative activities. Appellant’s App. at 251. More over, Lacks’s principal, Vernon Mitchell, testified at trial, as he did at the school board hearing, that he informed Lacks that the use of profanity by the students was not permitted in the student newspaper, one form of creative activity. Mitchell told Lacks: “There is no way I would allow profanity in the newspaper.” Trial Tr. at 1412. In fact, Lacks received more notice than has been required in other cases. In Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), a student was dis ciplined for using sexually suggestive language in a speech before a high school assembly. Before the student gave the speech, he told some of his teachers what he was going to say, and he was told that the speech was “in appropriate and that he probably should not deliver it” and that giving the speech could have “severe conse quences.” Id. at 678. The Court rejected the student’s argument that his due process rights had been violated 11a because he had not received sufficient notice that a delivery of the speech would result in discipline: “Given the school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disuptive of the educational process, the school discriplinary rules need not be as detailed as a criminal code which imposes criminal sanctions.” Id. at 686. In the present case, not only did Lacks admit that she was familiar with the school district’s disciplinary rules and understood her obligation to en force them, her principal also testified that he told her that the rules applied to one form of student creative activity. Therefore, as a matter of law, Lacks had suffi cient notice that under the board’s rules, she was not to permit profanity in her clasroom. Perhaps the jury did not believe the principal’s testimony about the warning he gave Lacks. Even so, the policy against profanity was explicit. Lacks well knew what the plays were like before she allowed the students to perform them. In acting as she did, she took the risk that the board would enforce the policy as written. Under the circumstances, the notice given was fair and constitutionally sufficient. We also hold, as a matter of law, that the school board had a legitimate academic interest in prohibiting pro fanity by students in their creative writing. The Supreme Court has written that public education “ ‘must inculcate the habits and manner of civility as values in themselves conducive to happiness and as indispensable to the prac tice of self-government in the community and the nation.’ ” Fraser, 478 U.S. at 681 (quoting C. Beard & M. Beard, New Basic History of the United States, 228 (1968)). While students in public schools do not “shed their con stitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969), students’ First Amendment rights “in schools and class rooms must be balanced against the society’s countervail ing interest in teaching students the boundaries of socially appropriate behavior.” Fraser, 478 U.S. at 681. Accord 12a ingly, the Supreme Court has held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school- sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988). A flat prohibition on profanity in the clasroom is reasonably related to the legitimate pedagogical concern of promoting generally acceptable social standards. The Supreme Court has told us that “schools must teach by example the shared values of a civilized social order.” Fraser, 478 U.S. at 683. The school board itself, in its opinion terminating Lacks’s employment with the school district, wrote that the purpose of the board’s disciplinary policies is “to establish, to foster, and to reflect the norms and standards of the community it serves.” Appellant’s App. at 903. Allowing one student to call another a “fucking bitch” and a “whore” in front of the rest of the class, and allowing a student to read aloud a poem that describes sexual encounters in the most graphic detail, as the students did in Lacks’s classroom, hardly promotes these shared social standards. We consider the matter too plain for argument. As a matter of law, the school board had the right to establish and require the enforcement of a rule which prohibits classroom profanity in any context, and it pro vided Lacks with enough notice of its disciplinary policies. Therefore, the judgment in the plaintiff’s favor on her First Amendment claim is reversed. C. At trial, Lacks set out to prove her race discrimination case by “direct” evidence of discrimination under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), rather than the indirect, burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Appellee’s Br. at 51-52. The jury found that Lacks had proved by a preponderance of the evidence that race was 13a a motivating factor in the school board’s decision to ter minate her, and that the school board did not prove by a preponderance of the evidence that it would have dis charged Lacks regardless of her race. 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. In reaching that conclusion, we are mindful that the evi dence must be viewed in the light most favorable to the jury’s verdict, and that all reasonable inferences in support of the verdict must be allowed. Lacks points to a statement made by Vernon Mitchell, her principal and supervisor. Mitchell admitted that when he saw the videotape with the students performing their plays, his reaction was that it was “black students acting a fool and white folks videotaping it.” Trial Tr. at 1392. Lacks also elicited testimony from another teacher at Berkeley High School that in the past Mitchell had dis played signs of hostility toward white teachers at Berkeley because Mitchell believed that some white teachers did not care about the students. Id. at 1316. And Lacks pro duced some evidence which arguably showed that Dr. John Wright, an assistant superintendent for personnel, viewed the videotaping incident in racial terms. Id. at 1656. Lacks is white; Mitchell, Wright, and the students are black. However, Mitchell and Wright did not make the deci sion to terminate Lacks; that decision was made by the school board. Trial Tr. at 1906-07, 2013. Lacks responds to this problem by arguing that the school board was influenced by the bias of the administrators, and that the board consequently served as the conduit, or “cat’s paw,” of the racial animus of the school administration. See Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1057-58 (8th Cir. 1993); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). But Lacks produced no evidence that the school board deferred to the opinion or judgment of Mitchell or Wright in making its determina tion. At the board’s hearing, neither Mitchell nor Wright 14a recommended that the board terminate Lacks. Trial Tr. at 1418, 1907. Patrick Boyle, a school board member, testified that no members of the administration were pres ent during the board’s deliberations, and that no adminis trator suggested to the board what the decision should be. Id. at 2013-14. Boyle said that all board members agreed that Lacks had violated school policy, and that most of the deliberations centered on the level of discipline she should receive. Id. at 2012. Michael Hirsch, another school board member, testified that during its deliberations, the school board never discussed any alleged racial dis crimination against Lacks by school administrators. Id. at 1905. Hirsch said, “We sat and we reviewed the evi dence; talked about the evidence; how it related to board policy. We listened to the arguments and discussed the arguments on both sides” Id. at 1906. The evidence in this case unequivocally shows that the board made an independent determination as to whether Lacks should be terminated and did not serve merely as a conduit for the desires of school administrators. Lacks’s “cat’s paw” theory must therefore fail. Lacks offers one piece of evidence which allegedly shows direct racial bias on the part of the school board: a four-page press release issued by the board after it ter minated Lacks’s teaching contract. The press release reads in part: Teachers set the tone and direction for class assign ments and projects, and all classroom activities should be able to stand the test of public scrutiny. The video produced in Ms. Lacks’ class demonstrates a serious and extreme lack of direction from the teacher. Teachers do not have the right to abdicate their responsibility to set standards under the guise of creativity. The content of the video is a violation of our black community; it is a violation of our white community; it is a violation of the values within our community and it is a violation of the ethical teaching standards practiced by all educa tional professionals. Most importantly, it is a viola 15a tion of the students in the class. It assumes that all students in the class operate from the standard of behavior portrayed on the video. That assumption is wrong, and it is what led to the student complaints that brought the video to the administration’s atten tion. Appellant’s App. at 1008-09. Lacks argues that the ref erences to “white community” and “black community” provide direct evidence that the board “had race on its mind” when it fired Lacks. Appellee’s Br. at 59. That proposition is questionable, especially given that Leslie Hogshead, the president of the school board, who signed the statement, testified that she did not believe the Lacks’s case involved racial issues. Trial Tr. at 1496. Moreover, having race on one’s mind is not the same thing as acting because of race. At any rate, the single reference in the school board’s press release is not sufficient to sustain the jury verdict on the race discrimination claims. Because Lacks has produced insufficient evidence that the school board’s decision to terminate her was motivated by race, the judgment in Lacks’s favor on her race discrimination claims cannot stand. On this record, the inference that the school board acted because of Lacks’s race is wholly unreasonable. In our view, the extreme nature of the language used and the exhaustive hearing given Lacks by the board leave no room for anyone reasonably to con clude that Lacks was disciplined because of her race. The judgment of the District Court is reversed, and the cause remanded with directions to dismiss the complaint with prejudice. It is so ordered. A true copy. Attest: Clerk, U.S. Court of Appeals, Eighth Circuit. 16a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 97-1859EMSL Cecilia Lacks, vs_ Appellee, F erguson R eorganized School D istrict R-2, Appellant. Order Denying Petition for Rehearing and Suggestion for Rehearing En Banc Filed: September 17, 1998 The suggestion for rehearing en banc is denied. Judge MacMillan and Judge Morris Sheppard Arnold would grant the suggestion. The petition for rehearing by the panel is also denied. McMILLIAN, Circuit Judge, dissenting. I dissent from the court’s denial of the petition for re hearing en banc. I believe that consideration by the full court is necessary to maintain uniformity of our decisions and, more importantly, because this case involves issues of exceptional importance. See Fed. R. App. P. 35(a). This case is not about whether students should or should not be permitted to use profanity in their creative w riting 17a assignments or anywhere else in school; indeed, I have no quarrel with a school policy that clearly and strictly pro hibits students from using profanity in all school-related activities. Nor is there any question that Lacks allowed some of her students to use profanity in their creative writing assignments “repetitiously and egregiously,” as the panel states. Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718, 719 (8th Cir. 1998) {Lacks). The issue in this case, however, concerns the constitutionality of terminating a public high school teacher—one who had been teaching for over twenty years—for allowing students to use profanity in their creative writing assignments, where that teacher was not on notice that the school’s profanity policy, as stated in the Student Discipline Code, was meant to cover student creative writing assignments. The factual question of whether Lacks was notified that the school policy prohibiting profanity covered student creative writing assignments was submitted to the jury in an interrogatory. The interrogatory asked: “Did [Lacks] have reasonable notice that allowing students to use pro fanity in their creative writing was prohibited?” Id. at 723. The jury answered “no.” Id. That factual finding by the jury must be reviewed by this court under a “highly deferential standard.” Crittenden v. Tri-State Thermo King, Inc., 108 F.3d 165, 166 (8th Cir. 1997). More specifically, in reviewing the jury’s finding that Lacks did not receive reasonable notice of the applicability of the school policy, this court must “resolve all conflicts in favor of [Lacks], giving [her] the benefit of all reasonable inferences and assuming as true all facts supporting [Lacks] which the evidence tended to prove.” Id.; see also Becker v. United States, 968 F.2d 691, 694 (8th Cir. 1992) (“Our standard for review of a jury finding is a deferential one: we must affirm the jury’s verdict ‘if, view ing the evidence in the light most favorable to appellees, reasonable persons could differ as to the proper conclu sion.’ ”) (citing Rademaker v. Nebraska, 906 F.2d 1309, 1311 (8th Cir. 1990)). 18a The panel in this case failed to follow our well-estab lished standard of review. The panel reversed the jury’s factual finding that Lacks was not given reasonable notice of the applicability of the profanity policy by simply declaring, “as a matter of law,” that the answer to the interogatory “was ‘yes.’ ” Lacks 147 F.3d at 723. In the interest of maintaining uniformity of our decisions, the panel opinion should be vacated. A jury finding is no less entitled to deference because it leads to an unpopular result. Moreover, the panel opinion’s underlying reason ing is flawed for several reasons. First, the panel opinion cites the fact that Lacks stated at trial that she knew she was required to enforce the Student Discipline Code and that she was familiar with the written rules and policies of the school board. Id. Lacks’s statement, viewed in isolation, certainly favors the school district’s position, but it is only a small portion of Lacks’s trial testimony. Lacks was on the witness stand for more than two days during the two-week trial. She pro vided ample testimony from which it could be inferred that she was not reasonably notified that allowing students to use profanity in their creative writing assignments was pro hibited, notwithstanding her knowledge of her duty to en force the Student Discipline Code and her familiarity with the school board’s written rules and policies. The assess ment of Lacks’s credibility was a function of the jury, not the court of appeals. See Greaser v. State of Missouri, Dep’t of Corrections, 145 F.3d 979, 983 (8th Cir. 1998) noting that determination of witness credibility is “task for the jury to perform”) (citing Manatt v. Union Pac. R.R. Co., 122 F.3d 514, 1518 (8th Cir. 1997) (“it was up to the jury to assess [the witness’s] credibility”), cert, denied, 118 S. Ct. 697 (1998)). Lacks also introduced anecdotal evidence at trial which showed that the use of profanity in student creative works had previously been allowed by the school without punish 19a ment to the supervising teacher or the students involved. For example, during the trial testimony of school principal Vernon Mitchell, Lack’s counsel questioned him about a play entitled “How You Living,” which was written and performed by Berkeley High School students under the supervision of a teacher named Sharita Kyles. Mitchell admitted that this play was performed one evening in the school auditorium, that it was open to the community, and that he was in the audience during the performance. Portions of a videotape of that production were shown to the jury during Mitchell’s testimony. While watching the videotape, Mitchell conceded that the play had profanity and other inappropriate content. For example, he admit ted that there were lines such as: “I tried to keep her back but she was pulling on my thing”; “I’ll blow your damn head off”; and “Man, damn leave me the hell alone.” In light of these admissions, Lacks’s attorney asked Mitchell if he had seen a student play containing profanity before he testified at Lacks’s school board hearing. Mitchell answered “yes.” He also admitted that when the play was over, he thanked the students and Sharita Kyles for the production and, thereafter, did not take any action against Kyles for violating the Student Discipline Code. Trial transcript (Vol. VII) at 1373-1386. While the “How You Living” play was performed at Berkeley High School around 1992, shortly before Lacks began teaching there, the evidence certainly supports the conclusion that teachers at the school were not reasonably on notice that they would be punished if a student were to write or perform a play containing profanity. More over, while it is abundantly clear that the profanity in Lacks’s students’ works was worse than the profanity in the play “How You Living,” that is not the issue; the issue is whether or not the jury reasonably could have concluded that “[Lacks] [did not] have reasonable notice that allowing students to use profanity in their creative 20a writing was prohibited,” based on the evidence introduced at trial viewed in the light most favorable to Lacks. The panel opinion also relies on the fact that Mitchell testified at trial that he informed Lacks that the use of profanity by the students was not permitted in the student newspaper, one area of student creative writing. The panel opinion states: “Lacks’s principal, Vernon Mitchell, testi fied at trial, as he did at the school board hearing, that he informed Lacks that the use of profanity by the stu dents was not permitted in the student newspaper, one form of creative activity. Mitchell told Lacks: ‘There is no way I would allow profanity in the newspaper.’113” Lacks, 147 F.3d at 723 (citing Trial transcript at 1412). Notably, in reversing the district court’s summary judg ment disposition of Lacks’s separate state law claim, which challenged the school board’s decision, the panel opined: 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. While Lacks did produce some evidence that confusion existed in the school district as to the profanity policy, and while she denied that she had been warned about it, we must read the record in the light most favorable to the school board’s decision, together with all reasonable inferences.321 Id. at 722. 1 1 Actually, the quote attributed to Mitchell in the panel opinion is a statement that was made by Lacks to Mitchell, not vice versa, during a transcribed meeting that took place on January 25, 1995. See Trial transcript (Vol. VII) at 1411-1412. 2 Notably, while the panel opinion omits any mention of the deferential standard of review that the court of appeals was re 21a It can equally be said that, while the jury heard testi mony that Lacks was directly warned by Mitchell that profanity in the student newspaper violated the school board’s profanity policy, the jury reasonably could have found that Lacks was not given reasonable notice that profanity in student creative writing assignments violated the policy. A school newspaper is not the same as class room creative writing assignments. Because Mitchell’s warning addressed a publication which held itself out as a newspaper and was identified with the school as a whole, the jury reasonably could have concluded that Lacks rea sonably assumed that Mitchell’s position vis-a-vis the stu dent newspaper was not based upon the Student Discipline Code. Thus, the mere fact that Mitchell instructed Lacks not to allow students to use profanity in the student newspaper does not prove, “as a matter of law,” that Lacks had sufficient notice that profanity was prohibited in her classroom creative writing assignments. See id. at 723-24. Finally, the panel opinion reasons: The Student Discipline Code clearly prohibits profanity and obscene gestures, and it contains no exception for creative activities. [T]he policy against profanity was explicit. Lacks well knew what the plays were like before she allowed the students to perform them. In acting as she did, quired to apply in reversing the jury’s factual finding on Lacks’s First Amendment claim, the panel opinion clearly describes the virtually identical standard of review that the district court was required to apply in setting aside the school board’s decision. See Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718, 721 (8th Cir. 1998) (“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 credibility of the witnesses is a function of the school board, not the reviewing court.”) (citations omitted). 22a she took the risk that the board would enforce the policy as written. Id. (emphasis added). By this, the panel could mean only one thing, given the context—that the policy “as written” was “explicit” in prohibiting the use of profanity in crea tive writing assignments. I disagree. School board policy 3043 requires teachers to enforce the Student Discipline Code, which in turn prohibits pro fanity and obscene gestures, among numerous other forms of “prohibited behavior.” Id. at 720 & n.2. Nowhere does the policy explicitly state that profanity is prohibited in student creative works, and nowhere does it state that creative writing assignments qualify as “behavior.” In other words, the policy was not explicit with respect to classroom creative writing assignments. Moreover, the jury reasonably could have concluded, under the circum stances of this case, that a teacher could reasonably as sume that the language a student used in a creative writing assignment was not considered “behavior” governed by the Student Discipline Code, particularly in light of evi dence that profanity in other student creative works— including one student-written play—was apparently con doned. In other words, the jury reasonably could have concluded that it also was not implicit in the Student Discipline Code that the profanity prohibition applied to creative writing assignments. That reasonable inference by the jury could not be overturned by the court of ap peals under our highly deferential standard of review. See Crittenden v. Tri-State Thermo King, Inc., 108 F.3d at 166. I also believe that en banc review is justified in this case because it involves issues of exceptional importance. The panel highlights the fact that offensive and profane words were used more than 150 times in approximately forty minutes of the student-written plays. The panel also points to the fact that “as part of a poetry-writing exercise, Lacks had permitted a student to read aloud in a classroom two of lids poems which contained profanity and graphic de 23a scription of oral sex.” Id. at 720 (citing [School Board] Hearing tr. at 386-88, 596-97). Of course, when these facts are viewed in isolation, one might wonder how sup pressing or censoring such profanity could raise any First Amendment or educational issues of exceptional impor tance. Again, these facts, standing alone, present only a one-sided, fractional portion of the evidence. The jury was presented with a much bigger picture. For example, Lacks testified at length about the two poems mentioned above and the context in which they were read to the class. Her testimony revealed that those two poems-—vulgar and shocking as they were—were the first utterances in the class by a boy named Reginald, who previously had re fused to participate in class and had repeatedly been sent to the principal’s office because he did nothing but put his head on his desk during class. While Lacks does not deny that she allowed Reginald to read those two poems aloud in class, she also testified that no one was aware of their content before he read them. Trial transcript (Vol. II) at 369. More importantly, however, she explained, that, after he wrote and read aloud those two poems, Reginald went on to write several more for her class, the last of which, entitled “Alone,” won academic awards. These facts were entirely ignored in the panel opinion (as they apparently were ignored by the school board). Lacks’s trial testimony regarding Reginald’s story is set forth below. I urge that this part of the record be fully and thoughtfully considered. Q. I would like to show you, Cissy, what’s been marked as Exhibit 18, and ask if you can identify this document? A. Yes. Q. What is it? A. This document is a series of poems that I showed to the administrators in my District that was 24a done by one of my students, Reginald McNeary, when he was in ninth grade. 0 . And when was that? A. That was in 1992.[3] Q. At the Berkeley High School? A. Yes. 0 . And these poems were done in which class? A. These poems were done in the ninth grade English class. Q. What do they illustrate, Cissy? A. They illustrate how a student can grow in a very short period of time using the student-centered teaching method. They illustrate that a student can learn a lot of techniques in a very short time if he or she cares about what he is doing, and they show that what a student says in the beginning is not at all the way a student might want to express him or herself, but it’s what they start with because they may not have had the experience to do or say any thing else. Q. And you said you showed these poems to your administrators? A. Yes. Q. When did you do that? A. I did that in a meeting that I had with them on January 25th. Q. 1995? A. 1995. Q. And that was after you were suspended? A. Correct. Q. All right, can you start with the first poem on the top there and explain to us the significance of 3 It is worth noting that the events involving Reginald occurred three years before the events concerning the student plays, which led to the school board’s termination of Lacks. 25a this poem in that learning process that you just de scribed? A. This poem that I’m going to read is the last poem that Reginald wrote. Q. The last poem he wrote in what period of time? A. In three weeks. Q. This was a three-week poetry unit? A. Yes. Q. In ninth grade English? A. Yes. Q. First of all tell us the story of Reginald. When he came into your class, what did you observe about him? 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, toally disengaged, totally disconnected from me, from school, and he also, I learned later, because I asked about him, had had a very difficult— MR. SUSMAN: Objection, hearsay. THE COURT: That will be sustained. Q. Did Reginald have any observable problems in learning, to your knowledge? A. Yes. Q. What were they? A. He seemed to have a very difficult time talking to people or looking at them. I saw him write some- 26a thing once and he seemed to have an eye hand co ordination problem in terms of writing. 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 class room 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 is 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 hating. I guess that’s why I have low self-esteem. The only time I show love is in my dreams. Q. Let me ask you Cissy, did this poem win any awards? A. This poem, a somewhat corrected one won awards. This poem won the first place in the poetry contest at Berkely High School, and then I believe it also won the district-wide poetry contest in a cor rected version. Q. Corrected in what way? A. Corrected in the grammar, and corrected a bit in the way the stanzas are organized. Q. Did Reginald agree to enter the poem in the contest? A. Yes. Q. Did he read this poem in class? A. Yes. Q. And you said you videotaped it? A. Yes. 28a Q. Why did you do that? A. At the end of the poetry unit when people have decided what they wanted to share with people, in this particular instance for poetry, we agree to tape them and then use them again in other classes, so each year they can see what students did the year before. Q. Okay, and then can you explain to us the process that you went through with Reginald to get him to this award-winning poem? A. Well, Reginald heard the things that we were talking about in terms of writing, and the first exer cise I believe that he saw, a tape of Quincey Troupe talking about poetry writing, and Reginald wrote a poetry exercise for us when we were reading out loud in the class, and he asked if he could read it out loud. It was the first time Reginald said anything in the class to any of us. Q. Okay, would you like to show us what he did at that point? A. Uh-huh. Q. At the beginning? A. I’m sorry, what do you mean, show it? Are you going to put it up? Q. First of all, Exhibit 18, could you turn to the first poems that you just mentioned? A. Okay. There is a poem called Hard Core Gangsta Pimp. Q. And the second poem? A. It’s called Click. Q. Let s see if I can get that. This Hard Core Gangsta Pimp poem? A. Uh-huh. Q. Is that the first poem he wrote in poetry class? A. Yes. Q. And would you agree there is a great deal of street language in there? A. Yes. 29a Q. Profanity? A. Yes. Q. The second poem as well, the second poem called Click, the name of this poem is Click? A. Uh-huh. Q. Same thing? A. Yeah. Q. How did this poem come to be read to the class? A. When we were doing the poetry exercises, we’re just experimenting and nobody knows what anybody else has written, but when asked if they would like to share it, Reginald said that he would like to share what he had written. Q. So he stood up and read it? A. Yes. Q. What did you say to him after he read these poems to the class? A. Well, I was a little taken aback because it was also read with a lot of anger, and I told him in the class that I thought that his writing had a lot of anger in it and that sometimes you can use anger to write extremely effective poems, and that he should listen to what we were doing in the rest of the classes when we talk about technique and process, and see if he could use some of that technique to express his anger in other ways. Q. You did not criticize him for the street lan guage in here? A. No. Q. Why not? A. I would have—I was so pleased that Reginald did something, that he made an effort to talk, it was the first time he shared anything with anybody and did anything at all in the class, I was not going to shut him down, I was going to take that and work with it. It was something, finally I had something 30a that he had done that I could work with, and the class could see him somewhat as part of the class and begin to respond to him. I thought it was a good moment in teaching. Q. Did he write any poems immediately after those two? A. Yes. Q. Can you tell us what the next poem was in the series? A. The next poem was called “Hate.” Q. When did he write Hate in relation to those first poems? A. I think probably about a week and a half later. Q. Okay? A. Week later. Q. Could you read “Hate” for us? A. There is so much hate in the world today. Some whites hate blacks and some Germans hate Jews. But they are wrong because no one can choose. How dark or bright or fat or light people are to be. If it was up to me I would love all my broth ers, white, Jews or any other. For Christmas instead of begging for jewelry, instead Fm going to pray for peace. Q. Did you see any progress then between those first poems and this one? A. Yeah, Reginald was beginning to use all tech niques and styles we had talked about. He had opened up. He was beginning to talk about the feel ings that he had, but in a way, I think, that he thought other people would listen to him and that was what he now thought was effective poetry. 31a Q. Did he write any other poem in that three week period of time? A. Yes. Q. What was the next poem he wrote? A. He wrote a poem called “Why.” Q. And is there a date on this poem? A. December 8 th, 1992. Q. Could you read “Why” for us? A. Why. Why do they stare at me when I’m [maxin’]? Is it ‘cus I’m not the color that they are [axin’]. They whisper in silence. I guess they think I’ll cuss. Violence, why, why couldn’t God make us one color Instead of black and white, and many others. Why, why when you look at me you look in fear When I have never beat you up or made you shed a tear. Why can’t we all just get along living in harmony. Is that too wrong? My sisters are labeled hooker and whore bang in’ And they have got my brothers dope and gangbanging’. Why are my people living in poverty and the rich don’t care how they be? Now I know this is the worst poetry you [ever heard] but it comes from the heart. I wrote every word. 32a Q. Did you see any progress here? A. I saw incredible progress. He is starting to use a certain style now and a rhythm to his writing, and it’s real clear that he also has a position and he wants other people to know what it is and when he read it he told us what this poem came from. Q. And then the last poem in the serious was the “alone” poem you read to us. A. The last poem was the “Alone” poem. Q. And how would you evaluate “Alone” as a piece of poetry? A. I think that the person who wrote this poem is not a student poet but a poet. I think he is like Langston Hughes. He has an incredible way with words, and it makes people cry, in class, or just be so moved by what he is saying the doing, it’s, you know, it’s really amazing as a poem. Q. Who chose his poem to win the district-wide poetry contest? A. I’m not sure. I didn’t. There were judges in the District who did. Q. And by the way, the poem “Alone” which won the districtwide poetry contest, does that have any street language in it? A. Yes, it does. Q. I never gave a damn about any other? A. Uh-huh, twice. Q. Considerably less than that what Reginald in cluded in his first two poems, would you agree? A. Yes. Q. And how do you explain that progress? A. Well, to me I see it all the time, that once a student opens up and starts expressing himself or herself and then learns the process or the techniques and they hear people listening to them, they just want to begin to change what they are doing, so it’s quite, 33a it just seems to me it is a quite natural learning process. It’s part of the student-centered method. Q. You also talked to us about peer critique, and I’m interested to know how did the class respond to Reginald’s first two poems? Q. Did the class respond to Reginald’s first two poems? A. The class as I recall was taken aback. They just listened, but at the same time said, “Reginald, good, you talked,” that’s what I remember. “Regi nald, you said something.” Q. Okay, and how did they react to the poem “Alone”? A. They actually cheered and clapped for him when he read it. Q. Okay. You told us earlier that you took these poems to the administrators to explain to them your teaching process in January of ’95 after you had been suspended. Did you take all the poems to them? A. Yes. Q. Did you explain to them as you explained to us today the teaching process? A. Yes. Q. Who did you explain this to? A. I explained it to John Wright, Vernon Mitchell and Barbara Davis. Q. Now, you went to the Board termination hear ing regarding your termination, is that correct? A. Yes. Q. And the District included a couple of Regi nald’s poems in its evidence against you, didn’t it? A. Yes. Q. How did they come to have these poems? A. I brought them all five of these poems, that’s how they came to have them. Q. Did the administrators show the Board Regi nald’s award-winning poem? A. No. Q. What did you think about that? A. I was so discouraged, I didn’t even know what teaching was about any more. They showed the first two poems that Reginald wrote and didn’t show any thing else, somehow seemed to have lost or forgotten all the other poems. Very discouraging for a teacher and also for the student who had written the poems. Id. at 360-76. The school district now argues that “[pjetitions for re hearing or hearing en banc should not be granted when the resolution of a case affects only the parties immediate to the action.” Response to Suggestion for Rehearing En Banc at 1 (citing Schwneger v. Iowa Beef Processors, Inc., 816 F.2d 1217, 1219 (8th Cir. 1987)). 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 hon estly and fairly, we are all affected, most especially our children. As the Supreme Court declared over thirty years ago, [o]ur 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 lav/s that cast a pall of orthodoxy over the classroom. “The vigilant protection of constitutional freedoms is no where more vital than in the community of American schools.” The classroom is peculiarly the “market place of ideas.” . . . “. . . No one should under estimate the vital role in a democracy that is played by those who guide and train our youth.” 35a We emphasize once again that “ [ p r e c i s i o n of reg ulation must be the touchstone in an area so closely touching our most precious freedoms;” . . , “[f]or standard of permissible statutory vagueness are strict in the area of free expession. * * * Because First Amendment freedoms need breathing space to sur vive, government may regulate in the area only with narrow specificity.” . . . When one must guess what conduct or utterance may lose him his position, one necessarily will ‘steer far wider of the unlawful zone * * * • ” . . . For the “[tjhreat of sanctions may deter * * * almost as potently as the actual application of sanctions.” . . . 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. Keyishian v. Board of Regents, 385 U.S. 589, 603-04 (1967) (citations omitted). As I indicated at the outset, I am not condoning the use of profanity in our schools or every aspect of Lacks’s teaching methodology. But the jury found in this case, based upon all the evidence and their assessments of credibility, that Lacks was not given reasonable notice that profanity was prohibited in her creative writing assignments. If she had been given such notice, this whole matter could have been avoided. In this day and age, while our children are being exposed to the worst aspects of society through the media, entertainment, and some times 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. Mean while, we require our teachers to pick their way through a mine field of competing and conflicting expectations, and changing and elusive legal standards. This case stands for the proposition that, for all her hard work and devo tion to all her students, this teacher was in the end fired 36a for stepping on a political land mine—one which she never even knew was there. This case was wrongly decided. I vote to grant the petition for rehearing en banc. A true copy. Attest: U.S. Court of Appeals, Eighth Circuit. 37a APPENDIX C UNITED STATES DISTRICT COURT E.D. MISSOURI No. 4:95CV1024 CDP Cecilia Lacks, Plaintiff, v. F erguson R eorganized School D istrict, R-2, Defendant. Aug. 15, 1996 MEMORANDUM AND ORDER PERRY, District Judge. This matter is before the Court on Count I of plain tiff’s complaint, which seeks judicial review of the school board’s March 23, 1995 decision to terminate plaintiff’s indefinite teaching contract. Also before the Court is de fendant’s motion for partial summary judgment as to Count III of plaintiff’s first amended complaint. Defendant Ferguson Reorganized School District, R-2 (“the district”) terminated plaintiff Cecilia Lacks from her position as a tenured school teacher because she al lowed her students to use profanity in the poems and plays they wrote for her English class, which defendant found violated a district rule prohibiting student profan ity. In her first amended complaint, plaintiff seeks judicial 38a review of the school board’s termination decision under Missouri law, Mo.Rev.Stat. §168.120 (Count I), alleges that defendant violated the Due Process Clause (Count II) and First Amendment (Count III) to both the United States and Missouri constitutions, and alleges that defend ant discriminated against her based on race under both federal and Missouri law (Counts IV and V). By order dated March 14, 1996, this Court dismissed plaintiff’s due process claims (Count II), and pursuant to that order also dismissd the two individual defendants. Therefore, the sole remaining defendant is the district. In its March 14, 1996 order, the Court also denied defendant’s motion to dismiss plaintiff’s First Amendment claims. The remain ing claims in this case, other than plaintiff’s request for judicial review of the board’s decision, are set for jury trial on November 4, 1996. I. Factual Background Plaintiff Lacks had an indefinite teaching contract with defendant school district, where she had taught since 1972. Plaintiff had been teaching at Berkeley Senior High School since 1992. During the 1994-95 school year (until she was terminated in March of 1995), plaintiff taught English and journalism at Berkeley. In addition, as part of her journalism class, plaintiff sponsored the school newspaper, which had not been published for sev eral years before she revived it in 1993. Plaintiff selected a curriculum for her English class in the fall of 1994 that included viewing, reading and writ ing drama. From September 28 to October 10, 1994, the students worked on a drama writing assignment in which the class was divided into six small groups, and each group had to write and perform a short play. On or about Octo ber 10, 1994, the students performed their plays and were videotaped by a district employee. The plays written and performed by the students contained extensive profanity, including frequent use by the students of the words “nig 39a ger,” “fuck,” “bitch,” “ass,” and “shit.” Plaintiff had re viewed the students’ scripts before the plays were pro duced, and also viewed the videotapes of the plays with the students in class. Plaintiff did not encourage or dis courage the use of profanity by her students in the drama assignment or any other creative-writing assignment, nor did she generally discuss the use of profanity in the plays or other creative works with her students after the fact. Plaintiff’s contract for employment, which she signed prior to the 1994-95 school year, stated that she “had received and read the rules and regulations and the state ment of policies of the Board of Education . . . ” The dis trict’s 1994-95 policies and procedures contained a stu dent discipline policy (board policy number 3043) that incorporated the “student discipline code” (“the code”). The code prohibits certain student behavior, both Type I (more severe) and Type II (less severe). Under the code, “Type II Behavior includes . . . profanity . . . and any other inappropriate behavior as defined by school offi cials.” At all relevant times, plaintiff’s classroom con tained signs that prohibited profanity. Outside of class- related creative activities, plaintiff did not tolerate the use of profanity or other disruptions by her students. Plaintiff did not censor student profanity in the students’ plays and poems because of her teaching approach, re ferred to as the “student-centered method,” in which teach ers do not censor the creative expressions of their students so that the students can find their own voice and have that voice accepted as is before it is ultimately refined. The student-centered method used by plaintiff is nationally accepted and plaintiff herself was successful with the method. During her career, plaintiff was praised by ad ministrators and teachers inside and outside of the district for her succes as a teacher. There are alternative meth ods of teaching creative writing that do not allow students to use profanity and that are successful. Plaintiff is famil iar with some of these methods and has briefly experi 40a mented with them, but has never used them for an entire semester. On or about January 10, 1995, Vernon Mitchell, princi pal at Berkeley, learned about the videotapes of the plays performed by plainntiff’s students in October 1994. Mitchell, along with Barbara Davis, the district’s Assistant Superintendent of Curriculum Instruction, and Dr. John Wright, the district’s Assistant Superintendent for Person nel, immediately viewed some of the plays. Plaintiff met with the administration on January 25, 1995, and ex plained her method of teaching in general and the drama assignment in particular. On January 27, 1995, Dr. Robert Fritz, the district’s Superintendent of Schools, formally charged plaintiff with willful or persistent violation of the published regulations of the Board of Education. Dr. Fritz alleged that plaintiff had violated numerous board policies and recommended that the board terminate plaintiff’s indefinite teaching con tract. Plaintiff made a timely request for a hearing by the school board, and a hearing was held on March 1, 2, 6, 7 and 9, 1995. At the hearing, defendant narrowed its charges to one: violation of board policy 3043 prohibiting student profanity. Defendant relied on the videotapes of the six plays and on two poems written by one of plain tiff’s students, each of which contained extensive profanity. On March 23, 1995, the school board issued its Findings of Fact and Conclusions of Law, signed by Board Presi dent Leslie S. Hogshead, by which it terminated plaintiff’s indefinite teaching contract effective that same day. The Board concluded that the plays and poems contained “ex treme profanity” and that plaintiff’s “conduct relative to [those plays and poems] and to similarly permitted and admitted prior teaching assignments of Teacher violated Board policy 3043, in a willful or persistent manner.” 41a II. Judicial Review of Board Decision (Count I) A. Standard of Judicial Review Under Missouri law, the board of education of a school district can terminate an indefinite contract with a perma nent teacher for six statutory reasons, including willful or persistent violation of a board regulation. Mo.Rev.Stat. § 168.114(1). Terminated teachers can appeal the deci sion of the board to the circuit court of the county where the employing district is located, and such appeals “shall be heard as provided in chapter 536, RSMo.” Id. § 168.120. Under chapter 536, which governs administra tive procedure and review, courts may overturn a school board’s decision if the decision: (1) Is in violation of constitutional provisions; (2) Is in excess of the statutory authority or jurisdic tion of the agency; (3) Is unsupported by competent and substantial evidence upon the whole record; (4) Is, for any other reason, unauthorized by law; (5) Is made upon unlawful procedure or without a fair trial; (6) Is arbitrary, capricious or unreasonable; (7) Involves an abuse of discretion. Id. § 536.140(2). Plaintiff filed a timely appeal of the board’s decision with the Circuit Court of St. Louis County, and defendant removed the case to this court. The Court has supplemental jurisdiction over this state- law claim under 28 U.S.C. § 1367, and must apply Mis souri law in reviewing the board’s decision. See, e.g., Carrington v. Mahan, 51 F.3d 106, 107 (8th Cir. 1995). Plaintiff challenges the school board’s decision to termi nate her contract on four grounds: (1) the evidence does not support the board’s finding of plaintiff’s willful and 42a persistent violation of board policy 3043 because the policy does not apply to creative works and because there is no evidence of willfulness or persistence; (2) the board’s decision was arbitrary, capricious and unreasonable in that the board failed to follow its own policies governing aca demic freedom and student publications; (3) the board’s decision is unauthorized by law and made pursuant to unlawful procedures in that defendant has attempted to disguise an in competency allegation as a violation of board policy, and defendant did not follow the heightened procedural requirements of a termination for incompe- tency; and (4) plaintiff did not receive a fair hearing under Missouri law because defendant did not allow her to depose two individuals and did not allow all of her witnesses to testify at the hearing. Because the board’s decision that plaintiff “willfully or persistently” violated board policy 3043 is unsupported by competent and sub stantial evidence upon the whole record, the decision of the board will be reversed and the Court will not examine plaintiff’s alternative arguments. B. Discussion In its decision, the board stated that plaintiff was termi nated because “[t]he Board has clearly established a pro hibition of profanity by students in policy number 3043; this is the policy under which Teacher has been charged and which Teacher has willfully or persistently violated.” Missouri law allows school districts to terminate the con tracts of tenured teachers based on “[wjillful or persistent violation of, or failure to obey, the . . . published regula tions of the board of education of the school district em ploying [her].” Mo.Rev.Stat. § 168.114(1) (4). In re viewing the evidence as to whether plaintiff’s actions were willful or persistent, this Court must afford appropriate weight to the board’s evidentiary findings: [T]he evidence must be considered in the light most favorable to the board’s decision, together with all 43 a reasonable inferences where supported. If evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination and it is irrele vant that there is evidence to support a contrary finding. Finally, the determination of the credibility of witnesses is a function of the administrative tribunal. Hudson v. Wellston Sch. Dist., 796 S.W.2d 31, 33 (Mo. Ct.App.1990) (citations omitted). Several Missouri courts have addressed the meaning of “willful” and “persistent” as used in § 168.114(1) (4). The Supreme Court of Missouri has stated: “Willful” has been defined as “done deliberately; not accidental or without purpose; intentional” and “persistent” as “continuing in a course of action without regard to opposition.” Board of Educ., Mt. Vernon Schools v. Shank, 542 S.W. 2d 779, 782 (Mo.1976) (en banc). Other Missouri courts have examined the degree of intent required under § 168.114(1) (4): Is it enough . . . that the offender intends to act, and the action taken happens to be inconsistent with a regulation, or must he or she act with the intention of violating or failing to obey a regulation? The first of these interpretations merely involves one intention, viz. to act in the absence of reflex or coercion; the second involves two intentions, viz. one to act and one to violate or disobey. We believe the latter interpreta tion provides the meaning intended by the legislature. Carter County Sch. Dist., R-l v. Palmer, 582 S.W.2d 347, 349 (Mo.Ct.App.1979); see also Burgess v. Ferguson Reorganized Sch. Dist., R-2, 820 S.W.2d 651, 656 (Mo. Ct.App.1991). Therefore, to support a finding that a 44a teacher violated § 168.114(4), Missouri courts require school districts to establish (1) an intent to act And (2) an intent to violate or disobey a particular regulation. Ortbals v. Special Sch. Dist. of St. Louis County, 762 S.W.2d 437, 440 (Mo.Ct.App.1988). In this case, defendant established the “intent to act” element because plaintiff admitted that she does not censor profanity in her students’ creative works. The issue, there fore, is whether plaintiff had an “intent to violate or dis obey a particular regulation,” i.e., board policy 3043. The board made no specific finding as to plaintiff’s intent to violate policy 3043, but presumed such intent because plaintiff was aware that policy 3043 incorporated the stu dent discipline code that prohibited student profanity. Plaintiff argues, however, that she did not know that policy 3043 applied to profanity in class-related creative assign ments. Defendant argues that there is no exception for class-related profanity on the face of policy 3043. De fendant also argues that plaintiff had been put on notice that the policy applied to creative works by Principal Mitchell’s warnings to plaintiff regarding profanity in the student newspaper. Plaintiff denies having received any warnings about profanity in the newspaper. The record as a whole clearly indicates that there was in practice an unwritten exception in the district for pro fanity 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. The relevant evidence can be summarized as follows: 8 In the 1993/94 school year, plaintiff showed Mitch ell 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 kill them . . . ” and Mitchell did not discuss the language with plaintiff or the student, nor did he discipline either plaintiff or the student. (Tr. 202). A play written and performed by Berkeley stu dents for the entire student body and attended by Mitchell contained profanity, including at least the word “damn,” as well as other conduct classi fied as Type II violations of policy 3043. (Tr. 209-12). Neither the teacher supervising that play nor the students performing it were disciplined in anyway. (Tr. 214-16). Dr. John Wright, assistant superintendent, testified regarding the plays produced in plaintiff’s class that “if [the students] were not doing this in a play, they would have been suspended, it would have been Type I or Type II behavior in the class room.” (Tr. 116). Wright testified that he did not know whether a student who reads profanity aloud from another author’s work could be punished. (Tr. 100). Karen Price, Chair of the English Department at Berkeley, testified that she was not aware of a rule that required teachers to censor profanity in cre ative works. (Tr. 813). Price also testified that she was not aware that a student reading profanity from literature could be charged with violating the student discipline code. (Tr. 823). Dr. Larilyn Lawrence, the district’s Curriculum Coordinator for Language Arts, testified that she did not know of a policy prohibiting students from reading profanity in literature aloud. (Tr. 845). 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. (Tr. 892). • James Nicholson, a playwright who visited plain tiff’s classes, testified that he was present when district administrators heard students read profan ity from their own creative works, but no adminis trator ever told him or plaintiff to disallow profan ity in the students’ creative expression. Nicholson testified that no policy was “verbalized to me or given to me in print.” (Tr. 318). • C.S., a former student of plaintiff, testified as follows: “I didn’t realize that expressing yourself in a play when, you know, I didn’t realize if you express yourself, you could get in trouble for that. But I realize that if you are using profanity and doing other things in the hallway or any place else in the school, that you could get in trouble.” (Tr. 852). ° 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.” (Tr. 510). 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.1 The only evidence that a district employee in l Defendant attempts to characterize Mitchell’s alleged warnings to plaintiff about profanity in the student newspaper as evidence that plaintiff knew profanity was not allowed in any student crea tive works. Defendant’s attempt is unconvincing because there is a separate board policy (number 2053) entitled “student publica tions” that requires teachers and students to judge the “appro priateness” of materials and to edit “obscene” and other material from the student newspaper and yearbook. Mitchell’s enforcement of this specific 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 begins with the following statement: “The Board recognizes creative stu- 47a terpreted policy 3043 as defendant has interpreted it even after plaintiff’s termination was the testimony of Barbara Davis, assistant superintendent. Davis testified that it would not be acceptable for a student to read aloud from a book or play that contained profanity, and that such behavior by a student “could be” a violation of the student discipline code. (Tr. 785-87). Further, when asked how teachers were to know that having student read profanity in creative works aloud could get them terminated, Davis testified that “teachers use judgment on that.” (Tr. 791- 92). When asked whether teachers in the district know they can be terminated for reading a play with profanity aloud in their classroom, Davis responded “I’m sure they do now.” (Tr. 797). Davis’ interpretation of policy 3043, which contradicts evidence from every other admin istrator or teacher who testified at the hearing, is not sufficient to prove that plaintiff or anyone else actually knew that policy 3043 prohibited extreme profanity by students in creative works. Rather, as the foregoing evidence demonstrates, there was no agreement or understanding within the district re garding how the use of profanity by students both in read ing literature aloud and in the students’ own creative expressions would be treated under the student discipline code.* 2 Davis said reading aloud literature containing pro fanity could violate the code; Lawrence, Price and Graham said that it would not. Students did not know that reading profanity—whether profanity written by other authors or dent expression as an educational benefit of the school experience. One medium of expression is student journalism.” The policy pro ceeds to expressly limit the content of student journalism, but does not address limitations on any other form of creative student expression. 2 Although the Court notes that plaintiff was not charged with allowing students to read other authors’ works aloud, it is relevant to the fact that the district drew lines in practice that were not expressly drawn in policy 3043. 48a by students—could lead to discipline, and students did in fact read profanity aloud in front of administrators of the district and were not disciplined. The students who per formed the plays in plaintiff’s class were not disciplined, according to one administrator, specifically because the profanities were part of a play. Price and Lawrence, who were called on by the administration to offer written state ments regarding the videotapes, testified that they did not believe that a teacher who allows profanity in creative writing violates the student discipline code. C. Conclusion The board has apparently attempted to draw the line at the extreme use of student profanity. In the “Conclusions of Law” section of the board’s decision, the board states that “District Exhibits 10, 11, 12 and 13 contain extreme profanity.” (Emphasis added). In addition, the board stated in the “Conclusions of Law” section that “Teacher’s conduct within the District was an isolated, willful and persistent practice violative of Board policy to a degree that cannot be, will not be and otherwise has not been tolerated.” (Emphasis added). On the other hand, neither teacher nor student were punished for the statement “I’ll blow your damn head off” in a student play, for using racial and ethnic slurs in a student journal, or for a stu dent’s use of the word “damn” in a prize-winning poem. It may be the board’s desire to draw lines with respect to student profanity, and the Court agrees that the board has the authority to establish and interpret its own pol icies. State ex rel. City of Springfield v. Public Serv. Comm’n, 812 S.W.2d ' 827, 833 (Mo.Ct.App.1991). However, the board never drew these lines in board policy 3043, until it chose to terminate plaintiff for violating the policy. On its face, policy 3043—contained in the stu dent behavioral code—prohibits student profanity and other disruptive behavior. On its face the policy refers to student behavior, not to a student’s performance of a play, or to a student’s reading aloud another’s writing, or 49a to a student’s own written work produced as part of a class assignment. The evidence overwhelmingly shows that in practice, student profanity in creative expression was allowed to a certain degree. The board could only have concluded that plaintiff intended to violate policy 3043 if it concluded that plaintiff knew that the policy pro hibited student use of profanity in creative works. This conclusion that plaintiff (or anyone else in the district) interpreted policy 3043 as the board has interpreted it— to allow some profanity but not extreme profanity in creative works—is simply not supported by the evidence presented to the board. Accordingly, defendant did not establish that plaintiff “willfully or persistently” violated board policy 3043. For that reason, the board’s decision must be reversed. D. Relief Missouri law provides that, if a court finds for the teacher on appeal, the teacher “shall be restored to per manent teacher status and shall receive compensation for the period during which he may have been suspended from work, and such other relief as may be granted by the court.” Mo.Rev.Stat. § 168.120(4). In addition to the statutory relief, plaintiff also seeks attorneys’ fees and costs, and expungement of any reference to her termina tion from plaintiff’s record. As required by Missouri law, the Court will order defendant immediately to reinstate plaintiff to her position as a teacher with an indefinite teaching contract and to compensate plaintiff from the date she was suspended by the district through the date of her reinstatement. Mo.Rev.Stat. § 168.120(4). In addition, the Court finds it appropriate to order defendant to expunge all references to plaintiff’s termination and to these proceedings from plaintiff’s personnel file. Finally, the Court will award plaintiff reasonable attorney’s fees and costs related only to her appeal of the board’s deci sion, i.e., Count I of plaintiff’s complaint. 50a II. Collateral Estoppel During this litigation, the parties have raised the issue of collateral estoppel (also known as issue preclusion) with respect to the effect of the board’s decision on plain tiff’s remaining legal claims for relief, which are set for jury trial in November 1996. The Missouri law of issue preclusion governs this case. Simmons v. O’Brien, 77 F.3d 1093, 1096 (8th Cir.1996). Under Missouri law, courts consider the following factors to determine whether collateral estoppel applies: (1) is the issue in the present case identical to the issue decided in the prior adjudica tion; (2) was there a judgment on the merits in the prior adjudication; (3) is the party against whom collateral estoppel asserted the same party or in privity with a party in the prior adjudication; and (4) did the party against whom collateral estoppel is asserted have a full and fair opportunity to litigate the issue prior to suit. King Gen eral Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 500 (Mo. 1991) (enbanc). Because there is no longer a prior “judgment on the merits” under the second factor, collateral estoppel does not apply in this case: “When an appellate court vacates a judgment, the lower court’s judgment cannot be con sidered a final judgment on the merits for purposes of collateral estoppel.” State v. Nunley, 923 S.W.2d 911, 922 (Mo.1996) (en banc). In this order, the Court re verses the decision of the school board; therefore, there is no final judgment on the merits for purposes of col lateral estoppel. Furthermore, with respect to the timing of this Court’s ruling on Count I, the Court notes that Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990), holding that a district court should not make factual determinations that are common to equitable and legal claims before the legal claims are heard by a jury, does not apply in this case because the Court did not make any factual determinations in ruling on Count I of plaintiff’s complaint. Rather, the Court held only that the board’s decision was not supported by competent evidence. Ac cordingly, collateral estoppel does not apply in this case and the jury deciding plaintiff’s remaining claims will not be bound by any prior decision in this case, either by the school board or by this Court. III. Motion for Summary Judgment (Count III) Defendant filed a motion for partial summary judgment on Count III of plaintiff’s complaint, in which plaintiff alleges that defendant violated her rights under the First Amendment. In its motion, defendant essentially argues that the Supreme Court has concluded, as a matter of law, that schools can prohibit profanity. Plaintiff argues that there is no per se rule allowing schools to prohibit any and all profanity; rather, the Court must apply the “legitimate pedagogical concerns” test in this case. The Court disagrees with defendant’s contention that the Supreme Court has concluded that schools can pro hibit profanity regardless of the circumstances. The two most relevant Supreme Court cases upholding a school’s right to prohibit profanity, Hazelwood Sch. Dist. v. Kuhl- meier, 484 U.S. 260 (1988) and Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), are distinguishable from the present case. In Hazelwood, the Court upheld the school’s right to prohibit profanity in a student news paper. In Bethel, the Court upheld the school’s right to discipline a student for making a lewd and offensive speech in front of 600 students in the context of a fellow student’s campaign for an elected class office. First, these cases are distinguishable from the present case because they both involved public dissemination of profanity. The Court in Bethel noted: “Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in pub lic discourse.” Bethel, 478 U.S. at 683. In the present case, the evidence shows that the student profanity al lowed by plaintiff was for in-class educational purposes only, and was specifically not to be disseminated outside of the classroom. Second, the Supreme Court cases are distinguishable from this case in that neither Hazelwood nor Bethel involved a teacher asserting her right to allow profanity that allegedly has a constructive educational purpose. The teacher’s allegations in this case require a balance of the school’s interest and the teacher’s inter est. Although the Court recognizes that schools have broad authority to prohibit student profanity, Hazelwood and Bethel do not require this Court to hold, as a matter of law, that defendant can prohibit profanity in its schools regardless of the context. Rather, Hazelwood contains the appropriate legal standard to apply in this case: Was defendant’s termina tion of plaintiff reasonably related to legitimate pedagogi cal concerns? Hazelwood, 484 U.S. at 273. Application of this legal standard will inherently require the appro priate balance of the school’s interest in prohibiting pro fanity and the teacher’s interest in using the teaching method at issue in this case. In applying the “pedagog ical concerns” test, it is appropriate to consider “among other things, the age and sophistication of the students, the relationship between teaching method and valid edu cational objective, and the context and manner of the presentation.” Silano v. Sag Harbor Union Free Sch. Dist. Bd., 42 F.3d 719, 723 (2d Cir.1994), cert, denied, 115 S.Ct. 2612 (1995). At trial, defendant must establish its pedagogical con cerns relating to the prohibition of this particular pro fanity, and must also establish that the termination of plaintiff was an action reasonably related to these con cerns. On the other hand, plaintiff must show that her termination was not reasonably related to legitimate ped agogical concerns. On all of these issues, many factual disputes remain. For example, the parties disagree as to the effectiveness of plaintiff’s teaching method and as to the effectiveness of other teaching methods that do not 52a 53a allow profanity. Therefore, because genuine issues of material fact remain, defendant’s motion for partial sum mary judgment on plaintiff’s First Amendment claims will be denied. There is a sub-element of plaintiff’s First Amendment claim: whether defendant afforded plaintiff appropriate notice under the First Amendment that her actions were prohibited. In its order denying defendant’s motion to dismiss on this issue, the Court noted that two Supreme Court cases contained potentially conflicting standards with respect to notice. The Court now agrees with defendant and is convinced that the First Circuit has articulated the appropriate standard with respect to the notice required in the context of the First Amendment rights of high school teachers: Indeed, this circuit has long recognized a teacher’s right to notice of what classroom conduct is pro hibited. Of course, while we acknowledge a First Amendment right of public school teachers to know what conduct is proscribed, we do not hold that a school must expressly prohibit every imaginable in appropriate conduct by teachers. The relevant in quiry is: based on existing regulations, policies, dis cussions, and other forms of communication between school administrators and teachers, was it reasonable for the school to expect the teacher to know that her conduct was prohibited? Ward v. Hickey, 996 F.2d 448, 453-54 (1st Cir.1993) (citations omitted) (emphasis added). Under the fore going standard, the Court has no doubt that several fac tual disputes remain in this case. For example, the parties dispute whether Mitchell warned plaintiff about profanity in the student newspaper, and if he did, what effect those warnings had on plaintiff’s understanding of board policy 3043 and its application to non-newspaper, class-related creative expression. These factual disputes preclude sum mary judgment, and defendant’s motion for partial sum- 54a tnary judgment as to the notice aspect of plaintiff’s First Amendment claim will be denied. Accordingly, IT IS HEREBY ORDERED that, pursuant to plain tiff’s request under Missouri law for judicial review of the school board’s March 23, 1995 decision, the decision of the school board is reversed. IT IS FURTHER ORDERED that defendant shall re instate plaintiff to her position as a teacher with an in definite teaching contract and shall compensate plaintiff from the date she was suspended by the district through the date of her reinstatement as required by Mo.Rev.Stat. § 168.120(4). IT IS FURTHER ORDERED that defendant expunge all references to plaintiff’s termination and to these pro ceedings from plaintiff’s personnel file. IT IS FURTHER ORDERED that plaintiff is awarded reasonable attorney’s fees and costs related only to her appeal of the board’s decision, i.e., Count I of plaintiff’s complaint. IT IS FURTHER ORDERED that defendant’s motion for partial summary judgment [# 46] on Count III (First Amendment) of plaintiff’s complaint is denied. A Partial Judgment in accord with this order is en tered this date.