Lacks v. Ferguson Reorganized School Dist. R-2, R-2

Citation147 F.3d 718
Decision Date22 June 1998
Docket NumberR-2,A,No. 97-1859,97-1859
Parties74 Empl. Prac. Dec. P 45,542, 127 Ed. Law Rep. 568, 14 IER Cases 24 Cecilia LACKS, Appellee, v. FERGUSON REORGANIZED SCHOOL DISTRICTppellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Thomas A. Mickes, St. Louis, MO, argued (Lucy A. Singer and Richard H. Kuhlman, on the brief), for appellant.

Jeremiah A. Collins, Washington, DC, argued (Leon Dayan and Lisa S. Van Amburg, on the brief), for appellee.

Before RICHARD S. ARNOLD, 1 Chief Judge, and WOLLMAN 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 substantial 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 High 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," "upsetting," and "embarrassing." Hearing Tr. at 271, 277, 439. Lacks was aware of the content of the plays before they were performed, because she had previously 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 employees 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 administration 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 administrators learned that as part of a poetry-writing exercise, Lacks had permitted a student to read aloud in a classroom 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 district 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 performances 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 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 failure to do so constituted a "willful and persistent practice violative 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 decision 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 Amendment 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. 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 District 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 discrimination 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 Administrative Procedure Act. In City of Chicago v. International College of Surgeons, 522 U.S. 156, 118 S.Ct. 523, 139 L.Ed.2d 525 (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 administrative action violated federal law. Id. 118 S.Ct. 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, 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 court 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 unsupported by "competent and substantial evidence upon the whole record"; (4) is made for any other reason unauthorized by law; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary, capricious or unreasonable; 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 determination of the credibility of the witnesses is a function of the school board, not the reviewing court. Ortbals 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 profanity used by her students. After a careful review of the evidence, we hold that the record contains sufficient evidence for the school...

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