Federal district court in Mississippi rules school district did not violate student’s free speech rights by disciplining for off-campus online post
Bell v. Itawamba Cnty. Sch. Bd., 11-00056 (N.D. Miss. Mar. 15, 2012)
Abstract: A federal district court in Mississippi has ruled that school officials did not violate a student’s free speech when they disciplined him for posting a “rap” song he composed and performed off-campus, and posted on his Facebook page. The court concluded that Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503 (1969), specifically held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.
The court rejected the student’s argument that because his speech was on a matter of public concern it was entitled to heightened protection. It found that he had failed to demonstrate as a matter of law that student speech is entitled to such heightened protection in lieu of the Tinker standard. The court also concluded that had it not found for school officials on the First Amendment speech claim, it would have granted them qualified immunity because the student had failed to show a reasonable official would have believed the student’s song to be clearly protected First Amendment speech.
The court, likewise, dismissed the parent’s Fourteenth Amendment due process claim that the school’s disciplinary measures infringed on the parent’s liberty interest to make decisions regarding the care, custody and control of her child. The parent had not shown, ruled the court, that the disciplinary measures taken by school officials were not tied to the school’s compelling interest of maintaining school order.
Facts/Issues: Taylor Bell, a student at Itawamba Agricultural High School (IAHS), filed suit in federal court against the Itawamba County School Board, Superintendent Teresa McNeece and Principal Trae Wiygul, alleging that the defendants disciplined him in violation of his First Amendment free speech rights. Bell was suspended and sent to an alternative school for five weeks after he posted on Facebook a rap song he had composed and recorded accusing two IAHS coaches of flirting and inappropriate contact with female students.
The suit contended that Bell’s song “was produced off school property, without using school resources, never played or performed at the school, not performed at a school sponsored event, and never accessed by students on school property.” Bell claims that four days after he posted the song on Facebook, he was taken out of class to meet with the school principal, the superintendent and the school board attorney, all of whom accused him of “making false allegations and threats.”
A school district disciplinary committeefound that his song amounted to harassment and intimidation of school teachers and possible threats against teachers. The committee recommended a seven-day suspension and five weeks at Itawamba Alternative School. On appeal, the school board upheld the punishment and affirmed that Taylor Bell “threatened, harassed, and intimidated school employees” with the publication of his song.
The suit made three federal claims: (1) that Bell was disciplined for engaging in constitutionally protected speech; (2) that the discipline violated the parenting rights of his mother, Dora Bell, guaranteed by the Fourteenth Amendment Due Process Clause; and (3) that Bell’s speech was entitled to heightened protection as it addressed a matter of public concern. The complaint also alleged violation of Mississippi law. Having determined that there were no factual issues, the court resolved Bell’s claims by summary judgment.
Ruling/Rationale: The district court first took up Bell’s free speech claim. It focused its analysis on language in Tinker stating, “conduct by a 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 by the constitutional guarantee of freedom of speech.” The district court followed the U.S. Court of Appeals for the Fifth Circuit precedent in Porter v. Ascension Parish School Board, 393 F.3d 608 (8th Cir. 2004), interpreting that passage of Tinker to be a specific ruling that off-campus conduct causing material or substantial disruption at school can be regulated by the school. It noted that the Fifth Circuit in Porter appeared to have added a requirement that the speech be intended to reach school. The district court also pointed out that the Tinker substantial disruption standard was applicable when the disruption is reasonably foreseeable.
Based on these legal principles, the district court determined that the free speech claim would be resolved by considering two questions: (1) whether Bell’s song caused or tended to cause a material and/or substantial disruption at school; or (2) whether it was reasonably foreseeable to school officials that the song would cause a material and/or substantial disruption at school. After reviewing that portion of Bell’s lyrics that made the specific allegations of sexual misconduct and threats, the court agreed with the disciplinary committee’s and school board’s findings that Bell’s song constituted “harassment and intimidation of teachers and possible threats against teachers” and “threatened, harassed, and intimidated school employees.” It concluded, “the subject lyrics in fact caused a material and/or substantial disruption at school and that it was reasonably foreseeable to school officials the song would cause such a disruption.”
The court found actual disruption based on the coaches’ testimony about feeling threatened by the lyrics and the adverse affect of the song on their teaching styles. In regard to foreseeable disruption, the court stated:
[I]t is reasonably foreseeable that a public high school student’s song (1) that levies charges of serious sexual misconduct against two teachers using vulgar and threatening language and (2) is published on Facebook.com to at least 1,300 “friends,” many of whom are fellow students, and the unlimited internet audience on YouTube.com, would cause a material and substantial disruption at school.
“Taylor Bell’s song caused a material and/or substantial disruption and it was reasonably foreseeable that such a disruption would occur.,” concluded the court. “The song is not protected by the First Amendment, and the school did not err in punishing Bell for publishing it to the public.”
The district court rejected Bell’s claim that his speech was entitled to heightened protection under the First Amendment because the speech addressed a matter of public concern. It found that Bell had failed ”to demonstrate as a matter of law that such heightened protection overrides the well-established Tinker test in matters of public school student speech as opposed to adults.” Lastly, the court rejected the mother’s due process claim based on interference with liberty interest because she was unable to show that the disciplinary actions taken “were not tied to the school’s compelling interest of a legitimate maintenance of school order.”
Bell v. Itawamba Cnty. Sch. Bd., 11-00056 (N.D. Miss. Mar. 15, 2012)
[Editor's Note: See Legal Clips' March 2011 summary of reporting by Courthouse News Service, which provides background on Bell's suit against the school board.
A number of courts have wrestled with question of whether school officials can regulate off-campus conduct, in particular online speech or expression. Unfortunately, the Supreme Court has provided no guidance on this issue. In January 2012, Legal Clips summarized articles from several media outlets reporting on the Supreme Court’s denial of certiorari in three student Internet speech cases, J.S. v. Blue Mountain Sch. Dist. (combined with Layshock v. Hermitage Sch. Dist.) and Kowalksi v. Berkeley Count Sch. In each of these cases, a student had used offensive language online, after school hours, to berate school administrators or a fellow student. School officials disciplined the student for the behavior, drawing a suit based on First Amendment free speech protection.
In J.S., the Third Circuit assumed without holding that the substantial disruption standard set out in Tinker applied, and determined that the school district had failed to demonstrate a reasonable forecast of disruption.
In Layshock, where the school district had abandoned its Tinker substantial disruption argument, the Third Circuit determined that the district had violated the student’s free speech rights because it had not established a sufficient nexus to the school. Nor could the district show that the speech had occurred on-campus so that it could be regulated under Fraser’s “lewd/vulgar” standard.
Meanwhile, in Kowalski v. Berkeley Count Sch., a three-judge panel of the Fourth Circuit found that the language of Tinker supports the conclusion that public schools have a compelling interest in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying. The panel determined that it was reasonably foreseeable that the speech would reach the school, so it was “satisfied that the nexus of Kowalski’s speech to [the school]‘s pedagogical interests was sufficiently strong to justify the action taken by school officials.
At least one state is considering legislation that would permit school officials to discipline students for off-campus conduct. In February 2012, Legal Clips summarized an article from the Student Press Law Center reporting that a bill that would allow schools to punish students for off-campus actions had been approved by the Indiana House of Representatives in January 2012 and was sitting in the state Senate. According to state Rep. Eric Koch, House Bill (HB) 1169 is an attempt to deal with growing issues like cyberbullying and cheating.]