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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, referred to as W. and R., 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.

The song.  According to the appeals court, the song described violent acts to be carried out against the coaches.  The “incredibly profane and vulgar” rap song had at least four instances of threatening, harassing, and intimidating language.  That included descriptions of using a “rueger” to “cap” one of the coaches and putting a “pistol” down his mouth.

Facebook and YouTube postsIn January 2011, Bell uploaded the song to his profile on Facebook using his private computer during non-school hours. The rap recording on his Facebook page was open and viewable to the public.  On January 6, 2011, Coach W. 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 W.’s inquiry, a student allowed him to listen to the song on the student’s cellphone. W. immediately reported it to the Principal, Trae Wiygul, who, in turn, informed Teresa McNeece, the Superintendent.

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The next day, Wiygul, McNeece, and the school district’s attorney, Michele Floyd, questioned Bell about the song and its accusations. After speaking with McNeece and the other officials, Bell was sent home for the rest of that day, which was a Friday. 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.

When school resumed on the following Friday, Bell returned to school. He was removed from class midday and informed that he was suspended pending a disciplinary hearing.  At the disciplinary/due process hearing before the school’s Disciplinary Committee on January 26, 2011, the school district’s attorney, Michele Floyd, 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 hearing, Bell admitted that he posted the song to Facebook because he knew it would be viewed and heard by students and that 2,000 people had contacted him about his Facebook and YouTube recordings.  Part of his motivation was to “increase awareness of the situation” although the student stated that he did not intend to threaten anyone.

The next day following the disciplinary hearing, Floyd 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 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 later affirmed the Disciplinary Committee’s decision, finding that the student “threatened, harassed and intimidated school employees.”  Under board policy, “[h]arassment, intimidation, or threatening other students and/or teachers” constitutes a severe disruption.

The lawsuitTaylor and Dora Bell filed this civil action under 42 U.S.C. § 1983 against the Itawamba County School Board, Superintendent McNeece (individually and in her official capacity), and Principal Wiygul (individually and in his official capacity), 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.

The rulingA three-judge panel of the Fifth Circuit initially affirmed the judgment in favor of the individual school officials but reversed the trial court judgment that was in favor of the school board and, instead, rendered judgment in favor of Bell.  However, the appeals court voted to rehear the case en banc, meaning that the entire 5th Circuit panel would review the case.  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 “incredibly profane and vulgar” rap song posted on the Internet that criticized two male coaches for their alleged improper conduct toward minor female students.  The Fifth Circuit en banc panel found that the school board discipline did not violate the student’s First Amendment rights.

Lessons learnedHere are the key takeaways from the Court’s opinion:

  • The standard under Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) applied to the off-campus speech in this case. Under that standard, a student “may express his opinions . . . if he does so without materially and substantially interfere[ing] with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.”  Thus, “conduct by the student, in class or out of it, which for any reason . . . materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized . . .” from discipline.
  • Although the rap song originated off campus, “evolving technological developments” give students “the ability to disseminate instantaneously and communicate widely from any location via the Internet.” According to the appeals court, “[t]he pervasive and omnipresent nature of the Internet has obfuscated the on-campus/off-campus distinction advocated by Bell, ‘mak[ing] any effort to trace First Amendment boundaries along the physical boundaries of a school campus a recipe for serious problems in our public schools.’”
  • While the appeals court did not set out a bright-line rule, it concluded that the student’s “admittedly intentionally directing at the school community his rap recording containing threats to, and harassment and intimidation of, two teachers permits Tinker’s” Thus, the speaker’s intent matters when determining whether off-campus speech is subject to Tinker.  The court stated:  “A speaker’s intention that his speech reach the school community, buttressed by his actions in bringing about that consequence, supports applying Tinker’s school-speech standard.”
  • In this case, there was no dispute that Bell intended his rap song to reach the school community; he produced the rap song knowing students, and hoping administrators, would listen to it.
  • The rap song constituted threats, harassment, and intimidation. The song threatened violence against two coaches, describing injury to be inflicted with a specific weapon, and encouraged others to engage in this action.  The song also harassed and intimidated the coaches by forecasting violence and warning them to “watch their backs.”
  • It was “objectively reasonable” for the school board to determine that the rap song threatened, harassed, and intimidated the two coaches.
  • The student’s rap recording reasonably could have been forecasted to cause a substantial disruption. The Tinker test is satisfied when an actual disruption occurs or the record contains facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.  Tinker requires “a specific and significant” fear of disruption.
  • Factors courts should consider: (1) the nature and content of the speech; (2) the objective and subjective seriousness of the speech; (3) the severity of the possible consequences should the speaker take action; (4) the relationship of the speech to the school; (5) the intent of the speaker to disseminate, or keep private, the speech; (6) the nature, and severity of the school’s response in disciplining the student; (7) whether the speaker expressly identified an educator or student by name or reference; (8) past incidents arising out of similar speech; (9) the manner in which the speech reached the school community; and (10) the occurrence of other in-school disturbances, including administrative disturbances involving the speaker, such as school officials having to spend considerable time dealing with these concerns and ensuring that appropriate safety measures were in place, brought about by the need to manage concerns over the speech.

Applying these factors, the Fifth Circuit in this case held that a substantial disruption reasonably could have been forecast and, therefore, the student’s discipline did not violate his First Amendment rights.  The speech pertained directly to events occurring at the school, identified two teachers by name, and was understood as threatening.  The possible consequences were “grave” and Bell admitted that he intended the speech to reach members of the school community.  District policy listed “harassment, intimidation, and threatening other students and/or teachers” as a severe disruption.  Still, the District’s response was “measured” and only involved a temporary suspension and six-week alternative education placement.  In upholding the school discipline against the student Circuit Judge Rhesa Hawkins Barksdale leaves us with these closing words:

It goes without saying that a teacher, which includes a coach, is the cornerstone of education.  Without teaching, there can be little, if any, learning.  Without learning, there can be little, if any, education.  Without education, there can be little, if any civilization.

It equally goes without saying that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability to educate.  It disrupts, if not destroys, the discipline necessary for an environment in which education can take place.  In addition, it encourages and incites other students to engage in similar disruptive conduct.  Moreover, it can even cause a teacher to leave that profession.  In sum, it disrupts, if not destroys, the very mission for which schools exist – to educate.

If there is to be education, such conduct cannot be permitted.  In that regard, the real tragedy in this instance is that a high-school student thought he could, with impunity, direct speech at the school community which threatens, harasses, and intimates teachers and, as a result, objected to being disciplined.

ps_sqaureOur final lesson, here, is that with student access to social networking, both on and off campus, “when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment.”  Therefore, under the facts of this case, the school board reasonably could have forecast a substantial disruption at school and the District was justified in its discipline of the student.

Read the full text of Bell v. Itawamba County School Board, __ F.3d __, No. 12-60264, 2015 WL 4979135 (5th Circ. August 20, 2015).

 

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