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

    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.