Free Speech Rights
STUDENT’S RAP SONG PROTECTED BY THE FIRST AMENDMENT
Case citation: Bell v. Itawamba County School Board, __ F.3d __, 2014 WL 7014371 (5th Cir. 2014).
Summary: In December 2010, Taylor Bell was an eighteen-year-old senior at Itawamba Agricultural High School in Louisiana with no disciplinary record, except for one in-school suspension for tardiness. Bell, an aspiring rap musician, began recording and seriously pursuing music in his early teens. According to Bell, female friends at school told him before Christmas 2010 that two male athletic coaches had inappropriately touched them and made sexually-charged comments to them and other female students. Bell did not report these complaints to school authorities, based on his belief that any complaint would be ignored. During the Christmas holidays, while school was not in session, Bell composed and recorded a rap song about the female students’ complaints at a professional recording studio unaffiliated with the school. Bell did not use any school resources in creating or recording the song. According to Bell, he believed that if he wrote and sang about the incidents, somebody would listen to his music and that it might help remedy the problem of teacher-on-student sexual harassment.
In January 2011, Bell uploaded the song to his profile on Facebook using his private computer during non-school hours. On Facebook, the song was accessible to Bell’s pre-approved online “friends.” The Facebook website was blocked on school computers. Although any of Bell’s Facebook “friends” potentially could use a cellphone to access the song on Facebook, school regulations prohibited students from bringing cellphones to school. Upon returning to school after the Christmas holidays, Bell testified that he never encouraged anyone at school—students or staff—to listen to the song. He further testified that he never played the song at school. No evidence was offered by the School Board to the contrary.
On January 6, 2011, one of the coaches received a text message inquiring about the song from his wife, who had been informed of Bell’s Facebook posting by a friend. In response to the inquiry, a student allowed the coach to listen to the song on the student’s cellphone. The coach immediately reported it to the Principal, Trae Wiygul, who, in turn, informed Teresa McNeece, the Superintendent.
The next day, Wiygul, McNeece, and the school district’s attorney, Michele Floyd, questioned Bell about the song and its accusations. According to Bell, the school officials never suggested that the coaches felt threatened; instead, it seemed to Bell, the problem was that one of the coaches felt as though “his name had been slandered.” Bell testified that the officials never said that school had been disrupted as a result of the song. After speaking with McNeece and the other officials, Bell was sent home for the rest of that day, which was a Friday. Bell testified that he was not given a clear answer as to the specific reason why he was being sent home that day.
Due to snow, the school was closed until Friday of the following week. During that time, Bell created a more polished version of the song, which included various sound effects, a slideshow, and a brief monologue at the conclusion. Bell then uploaded the final version of the song to YouTube from his home computer before classes resumed. Bell later explained that he created and posted this YouTube version of the song to help people, including school officials, “more clearly understand exactly what [he] was saying” in the song.
When school resumed on the following Friday, Bell returned to school. He testified that he could discern no disruption due to the song, nor did he tell anyone at school—students or staff—to listen to the song. However, around mid-day on that date, he was removed from class by the Assistant Principal, who informed him that he was suspended effective immediately, pending a disciplinary hearing. However, school officials did not require Bell to immediately vacate the school, and he remained in the school commons until his school bus arrived at day’s end.
At the disciplinary/due process hearing before the school’s Disciplinary Committee on January 26, 2011, the school district’s attorney stated that the purpose of the hearing was to determine whether Bell had “threaten[ed], intimidat[ed], and/or harass[ed] one or more school teachers.” At the disciplinary/due process hearing, no evidence was presented that the song had caused or had been forecasted to cause a material or substantial disruption to the school’s work or discipline. In addition, there was no evidence presented indicating that any student or staff had listened to the song on the school campus, aside from the single instance when one of the targeted coaches had a student play the song for him on his cellphone in violation of school rules. Neither of the coaches named in the song attended or testified at the hearing, and no evidence was presented at the hearing that the coaches themselves perceived the song as an actual threat or disruption. The next day, the attorney sent Bell’s mother a letter setting forth the Committee’s decision to uphold the suspension already imposed on Bell, to place Bell in an alternative school for the remainder of the nine-week grading period, and to prohibit Bell from attending any school functions during that time. The Committee had concluded that whether Bell’s song constituted a threat to school district officials was vague, but the song harassed and intimidated the coaches in violation of Itawamba School Board policy and unspecified state law. The School Board affirmed the Disciplinary Committee’s decision.
Taylor and Dora Bell filed this civil action under 42 U.S.C. § 1983 against the Itawamba County School Board, Superintendent McNeece, and Principal Wiygul, alleging that the defendants violated Taylor Bell’s First Amendment right to freedom of speech by imposing school discipline on Bell for his off-campus composition, recording and Internet-posting of his rap song. Both the plaintiffs and defendants requested judgment in their favor prior to trial and the trial court granted the school defendants’ motion. Judgment was, therefore, rendered in favor of the school defendants. Bell appealed the ruling to the Fifth Circuit Court of Appeals.
Ruling: The Fifth Circuit reversed the judgment in favor of the school board and, instead, rendered judgment in favor of Bell. The main issue before the court of appeals was whether a public high school violated the First Amendment by punishing a student for his off-campus speech – his rap song posted on the Internet that criticized two male coaches for their improper conduct toward minor female students. This case does not involve speech that took place on school property or during a school-approved event off campus. Nevertheless, the district court, interpreted Tinker v. Des Moines Independent Community School District as applying directly to Bell’s off-campus speech, as well as on-campus speech. The trial court held that the school board had authority to regulate and punish Bell’s speech because the evidence established that his rap song had “in fact” substantially disrupted the school’s work and discipline and that it was “reasonably foreseeable” that the song would cause such a disruption. The appeals court, however, reversed the district court’s application of Tinker as legally incorrect. According to the appeals court, Tinker could not afford the school board a defense in this case because the record did not support the conclusion that a material and substantial disruption at school actually occurred or reasonably could have been forecasted.
The Fifth Circuit declined to explicitly adopt the Tinker standard in off-campus speech cases like this, but nonetheless held that if it did apply, the district did not demonstrate a defense under Tinker’s substantial disruption test. According to the appeals court (1) Bell composed and recorded the song completely off campus, (2) he used his own computer to post it on the Internet during non-school hours, (3) the evidence was insufficient to show that Bell’s song created a substantial disruption of school work or discipline or that school officials reasonably forecasted such a disruption. Thus, even if Tinker did apply to the off-campus speech, the evidence did not support a defense under Tinker.
The district also claimed that its actions were warranted and no First Amendment violation occurred because Bell’s speech amounted to a “true threat” under the Fifth Circuit’s prior holding in Ponce v. Socorro Indep. School District. The Fifth Circuit also rejected this assertion. In the Ponce case, the appeals court held that a student’s speech — a notebook that contained plans to carry out a Columbine-like attack on his high school and other schools — was not protected speech. The Ponce case did not involve purely off-campus speech. The notebook had been brought to the campus and was shown to a classmate. The notebook also depicted a plan to commit a mass, systemic school shootings similar to Columbine and others in recent history. The rap song in this case, on the other hand, amounted to only a “rhetorical threat” rather than a genuine one, according to the appeals court. Further, the song did not “gravely and uniquely threaten violence” to the school population, like the notebook in Ponce. Significantly, the district did not establish that it considered the rap song a true threat to school officials. Looking to the context and manner of the speech, its conditional nature, and the listeners’ reactions to it, the appeals court concluded that the rap song Bell recorded did not constitute a “true threat.” For these reasons, the Fifth Circuit reversed the judgment in favor of the district and rendered judgment in favor of Bell, finding that the disciplinary decisions violated Bell’s First Amendment rights.
Comments: This case is must-reading for school administrators and school attorneys. Although the Fifth Circuit did not offer a clear standard to apply to purely off-campus speech, we do know that for Tinker to apply, a district must present clear proof of a substantial disruption on the campus or that such a disruption reasonably could have been forecasted. We also learn that, to constitute a “true threat” unprotected by the First Amendment, the speech has to be more than rhetorical. Instead, it must “gravely and uniquely threaten violence.”
DID THE STUDENT’S BULLYING ALLEGATIONS STATE VALID CLAIMS AGAINST THE DISTRICT?
Case citation: G.M. ex. rel. Lopez v. Shelton, __ Fed.Appx. __, 2014 WL 6735114 (5th Cir. 2014) (unpublished).
Summary: In 2012, G.M. was a fourth-grade student at Stuard Elementary School in the Aledo Independent School District. From the time that he was in kindergarten through the time that this suit was brought in 2012, G.M. allegedly suffered ongoing bullying by another student, including repeated incidents of being shoved into walls, pushed, kicked, and spit upon. It was alleged that from the beginning, G.M. and G.M.’s mother repeatedly contacted teachers and administrators to discuss the bullying and the negative impact that it had on G.M.’s physical and emotional health. G.M.’s mother claimed that, despite knowing about the bullying, “Defendants” either (1) had taken no corrective action, (2) had taken insufficient action, or (3) participated themselves in the bullying and harassment against G.M. The lawsuit stated that “teachers and administrators” were not only indifferent to these complaints, but increased the danger to G.M. by punishing G.M. for defending himself while imposing no punishment on the perpetrator, and informing other students that their recess time was shorter due to G.M.’s complaints about the bullying.
Carmen Lopez, as mother and “next friend” to G.M., filed suit against Aledo Independent School District (Aledo), as well as Ron Shelton individually and in his official capacity as principal of G.M.’s elementary school, alleging two federal claims pursuant to 42 U.S.C. § 1983 – a substantive due process claim as well as an equal protection claim. The district and Shelton moved for dismissal of the suit, arguing that G.M. and his mother failed to state a claim upon which relief could be granted. The trial court concluded the suit alleged insufficient facts regarding the municipal liability of the Board of Trustees, as she did not make a showing that the Board had a policy or custom that the school district followed in allowing the continued bullying of G.M. Because of this finding, the district court did not address the additional constitutional claims.
Ruling: The Fifth Circuit affirmed the judgment in favor of the district and Shelton. The appeals court observed that “Texas law is clear that final policymaking authority in an independent school district . . . rests with the district’s board of trustees.” In order to state a claim for municipal liability under 42 U.S.C. § 1983 against a school district in Texas, a plaintiff must provide proof of (1) a policymaker; (2) an official policy; and (3) a violation of constitutional rights whose “moving force” is the policy or custom. An “official policy” may be either a “policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or a persistent, widespread practice … which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents municipal policy.” When suit is filed, the description of a policy or custom and its relationship to the underlying constitutional violation cannot be conclusory but, instead, must contain specific facts.
In this case, the suit did not mention an official policy, but stated that the actions taken by Defendants were “contrary to the written policies of Aledo Independent School District.” The trial court inferred that the suit pled the existence of a widespread custom, as opposed to an official policy, of allowing the bullying of G.M. to continue. However, the district court ultimately reasoned that because the complaint failed to make any allegation that “the majority” of Aledo’s board of trustees were aware of or approved of their employees’ actions with regard to G.M., such conduct could not be attributed to Aledo through its board of trustees.
Additionally, while G.M.’s mother did not explicitly point to the board of trustees as the policymaking authority, she mentioned “Board members” in her claim regarding a de facto policy. For example, the complaint alleged that, “the actions of Defendants resulted from, and were taken, pursuant to a de facto policy which is implemented by the Superintendent, Principals, Assistant Principals, Board members, and other employees of the said Defendants” According to the suit, the existence of such a de facto policy “has been known to supervisory and policy making officers” for some time. However, despite making reference to this de facto policy and the policy-making officers’ awareness of it, the suit did not allege sufficient facts to show the existence of such an underlying policy.
The trial court had held that the suit lacked the factual particularity required for a meaningful allegation that an official policy was established by custom or practice. In analyzing these types of allegations, courts have stated that the word “policy” generally implies a course of action chosen from among various alternatives.” In this suit, however, there was no indication that the employees acted in accordance with a custom that was chosen from various alternatives. The complaint lacked sufficient facts to show that a policy or custom to tolerate G.M.’s bullying existed. Without alleging facts to show that the district’s employees were acting in conformance with a custom that could be attributed to the board of trustees, the suit did not adequately state a claim under which the board may be held liable. Thus, the appeals court upheld the judgment in favor of the district.