Taylor Bell v. Itawamba County School Board

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 12, 2014
No. 12-60264
Lyle W. Cayce
Clerk
TAYLOR BELL; DORA BELL, individually and as mother of Taylor Bell,
Plaintiffs - Appellants
v.
ITAWAMBA COUNTY SCHOOL BOARD; TERESA MCNEECE,
Superintendent of Education for Itawamba County, individually and in her
official capacity; TRAE WIYGUL, Principal of Itawamba Agricultural High
School, individually and in his official capacity,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
This appeal raises a First Amendment challenge to a public high school
student=s suspension and transfer to alternative school for his off-campus
posting on the Internet of a rap song criticizing, with vulgar and violent lyrics,
two named male athletic coaches for sexually harassing female students at his
school. The aspiring student rapper, Taylor Bell, composed the song off
campus, recorded it at a professional studio unaffiliated with the school, and
posted it on his Facebook page and on YouTube using his personal computer
No. 12-60264
while at home. Bell had never before been charged with a serious school
disciplinary violation. After the disciplinary action was imposed and affirmed
by the Itawamba County School Board, Bell and his mother, Dora Bell, sued
the School Board, its Superintendent, and the school=s Principal, for violation
of Bell=s freedom of speech under the First Amendment and Dora Bell=s
substantive-due-process right to parental authority under the Fourteenth
Amendment. Upon cross-motions for summary judgment, the district court
rendered summary judgment for the School Board and its officials. The Bells
appealed.
We reverse the district court=s judgment in favor of the School Board
against Taylor Bell and render summary judgment against the School Board
in favor of Taylor Bell, awarding him nominal damages as prayed for, and
other relief, for the Board=s violation of his First Amendment right to freedom
of speech. The summary-judgment evidence and materials establish that Bell
composed and recorded his rap song completely off campus; that he used his
home computer to post it on the Internet during non-school hours; and that the
School Board did not demonstrate that Bell=s song caused a substantial
disruption of school work or discipline, or that school officials reasonably could
have forecasted such a disruption. Otherwise, the district court=s grant of
summary judgment in favor of Defendants-Appellees against Dora Bell is
affirmed, as well as the district court=s summary judgment for the individual
school officials. 1
1The Bells waived their appeal of the district court=s ruling on Dora Bell=s Fourteenth
Amendment substantive-due-process claim by failing to raise that issue in their initial brief.
We therefore affirm the district court=s ruling without addressing the merits of that claim.
For the same reason, we affirm the district court=s alternative holding that qualified
immunity bars Taylor Bell=s suit against the individual defendants. Therefore, we consider
only Taylor Bell=s First Amendment claim against the School Board.
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No. 12-60264
I.
A.
In December 2010, Taylor Bell was an eighteen-year-old senior at
Itawamba Agricultural High School with no record of any disciplinary problem
aside from a single in-school suspension for tardiness. Bell is an aspiring rap 2
musician, has written lyrics and music since he was a young boy, and began
recording and seriously pursuing music in his early teens. 3 In this respect,
Bell considers himself an Aartist.@ Bell testified that several of his female
friends at school told him before Christmas 2010 that two male athletic coaches
at school, Michael Wildmon and Chris Rainey, had inappropriately touched
them and made sexually-charged comments to them and other female students
at school. The record also contains affidavits from female students stating
that they informed Bell of this misconduct by Wildmon and Rainey.
According to these affidavits, Wildmon told one of Bell=s classmates, R.M., 4
that she had a Abig butt@ and that he would date her if she were older. She
also stated that Wildmon had looked down her shirt, inappropriately touched
2 ARap has been defined as a >style of black American popular music consisting of
improvised rhymes performed to a rhythmic accompaniment.=@ Campbell v. Acuff-Rose
Music, Inc.,510 U.S. 569, 572, n.1 (1994) (quoting The Norton/Grove Concise Encyclopedia of
Music 613 (1988)). According to scholars, the genre Aderives from oral and literary
traditions of the Black community.@ Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics
as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1, 22 (2007). Today, rap music
is not only a musical form with its own unique artistic conventions, id. at 20, but also a multi-
billion-dollar commercial industry. See, e.g., Julie Watson, Rapper=s Delight: A Billion-
Dollar Industry, Forbes.com (Feb. 18, 2004),
http://www.forbes.com/2004/02/18/cx_jw_0218hiphop.html
3 Bell testified that he regularly records music in a studio (Aonce a week@ if possible).
4 As the students are not parties to this suit and were minors at the time these events
took place, we use only their initials to protect their privacy.
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No. 12-60264
her, and told her that she was Aone of the cutest black female students@ at
Itawamba. Another student, D.S., told Bell that she witnessed these
incidents between Wildmon and R.M.; in addition, D.S. informed Bell that
Rainey had Arubbed [her] ears at school without her permission, and [that she]
had to tell him to stop.@ Yet another student, S.S., told Bell that Rainey
commented to her that he thought she had A>messed= with some nasty people@
and suggested that he otherwise would have, in S.S.=s words, Aturn[ed] [her]
back >straight= from being >gay.=@ A fourth student, K.G., told Bell that Rainey
approached her in the gym and said, Adamn baby, you are sexy.@
Bell admitted that he did not report these complaints to school
authorities, but he explained that, in his view, the school officials generally
ignored complaints by students about the conduct of teachers and coaches.
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 5 accused Wildmon of telling students that they are Asexy@ and
looking down female students= shirts, and it stated that he Abetter watch [his]
back,@ and that Awhite dude, guess you got a thing for them yellow bones /
looking down girls shirts / drool running down your mouth / you fucking with
the wrong one / gonna get a pistol down your mouth.@ The refrain of the song
5 Bell=s Facebook page labels the song AP.S. Koaches,@ but Bell=s complaint identifies
the song=s title as APSK The Truth Needs to be Told.@
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No. 12-60264
repeated lines to the effect of Amiddle fingers up if you hate that nigga / middle
fingers up if you can=t stand that nigga / middle fingers up if you want to cap
that nigga.@ The song referred to Rainey as a second ABobby Hill,@ a former
Itawamba football coach who was arrested and accused of sending explicit text
messages to a minor in 2009. The lyrics also accused Rainey of Arubbing black
girls= ears in the gym.@ The song=s lyrics in full were as follows: 6
Let me tell you a little story about these Itawamba coaches
Dirty ass niggas like some fucking coacha roaches
Started fucking with the whites and now they fucking with the
blacks
That pussy ass nigga Wildmon got me turned up the fucking max. 7
Fucking with the students and he just had a baby
Ever since I met that cracker I knew that he was crazy
Always talking shit cause he know I=m from the city 8
The reason he fucking around cause his wife ain=t got no titties
This nigga telling students that they sexy, betta watch your back
I=m a serve this nigga like I serve the junkies with some crack
Quit the damn basketball team / The coach a pervert
Can=t stand the truth so to you these lyrics going to hurt 9
What the hell was they thinking when they hired Mr. Rainey
6 The record contains an audio recording of the song lyrics and three different
transcripts of the recording : (1) a transcript submitted by the School Board in its response
to Bell=s preliminary-injunction motion, (2) a transcript submitted by Bell at the preliminary-
injunction hearing, and (3) a transcript submitted by the School Board at the preliminary-
injunction hearing. Where appropriate, spelling and typography are standardized and the
lyrics are harmonized as between the recorded and transcribed versions of the song entered
into the district court record. Where the lyrics differ between the three different
transcriptions in the record, the differences are noted. However, none of the lyrical
differences is dispositive to the outcome of this case.
7 Or Aturnin= to a fucking mess.@
8 Or Adaw-city.@
9 Or ASo the union league is gone [sic] hurt.@
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No. 12-60264
Dreadlock Bobby Hill the second / He the same see
Talking about you could have went pro to the NFL
Now you just another pervert coach, fat as hell 10
Talking about you gangsta / Drive your mama=s PT Cruiser 11
Run up on T-Bizzle 12 / I=m going to hit you with my rueger 13
Think you got some game / Cuz you fucking with some juveniles
You know this shit the truth so don=t you try to hide it now
Rubbing on the black girls= ears in the gym
White hoes, change your voice when you talk to them
I=m a dope runner, spot a junkie a mile away
Came to football practice high, remember that day
I do, to me you a fool nigga
30 years old fucking with students at the school
Hahahah You=s a lame and it=s a damn shame
Instead you was lame, eat shit, the whole school got a ring
mutherfucker. 14
Heard you textin= 15 number 25 16 / You want to get it on
White dude, guess you got a thing for them yellow bones
Looking down girls= shirts / Drool running down your mouth
10 Or Aas bad as hell.@
11 Or Atry your mama beat crews up.@
12 AT-Bizzle@ refers to Taylor Bell.
13 Or Aruler.@ The transcript of the lyrics submitted by Bell at the preliminary-
injunction hearing specifies the lyric is Arueger.@ However, as noted supra, our holding does
not pivot on the applicability of one term or the other.
14Or AYou so lame it=s a damn shame/Instead you wadn=t shit, the whle team gotta
reign Mother Fucker.@
15 Or Akissing.@
16 ANumber 25@ refers to one of the female students.
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No. 12-60264
You fucking with the wrong one / Going to get a pistol down your
mouth/Pow 17
OMG 18 took some girls in the locker room in PE
Cut off the lights you motherfucking freak
Fucking with the youngins
Because your pimpin game weak 19
How he get the head coach I don=t really fucking know
But I still got a lot of love for my nigga Joe
And my nigga Makaveli and my nigga Cody
Wildemon talk shit bitch don=t even know me
Middle fingers up if you hate that nigga
Middle fingers up if you can=t stand that nigga
Middle fingers up if you want to cap that nigga
Middle fingers up / he get no mercy nigga.
In the first few days of January 2011, 20 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 Afriends.@ 21
17 Or Aboww@ according to the transcript of lyrics provided by Bell at the preliminary
injunction hearing.
18 A[O]h my God.@
19 Or Acause you pimpin can=t read.@
20Bell testified at the preliminary-injunction hearing that he posted the song Aon the
first Wednesday in January,@ which would be January 5, but Bell=s brief in support of his
preliminary-injunction motion states that the song was posted on January 3.
21 Although a screen shot of Bell=s Facebook page contained in the record indicates he
had approximately 1,380 Afriends,@ there is no evidence of how many of his Afriends@ were
current students at Itawamba. In addition, the evidence does not reflect how many Afriends@
listened to the song. The dissent argues that three of the Afriends@ shown in a screen shot
of Bell=s Facebook page were Bell=s Afellow students.@ However, at most, the screen shot
shows only that three Afriends@ were a part of the Itawamba Agricultural High School
network, and does not evince whether those individuals were students currently enrolled at
the high school, former students who had graduated or transferred but remained on the
network, or individuals who were part of the Itawamba network for some other reason.
Although comments directly below Bell=s Facebook posting indicate that some individuals
listened to the song, there is no evidence whether those individuals were fellow students.
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No. 12-60264
The Facebook website was blocked on school computers. Although any of
Bell=s Facebook Afriends@ 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 schoolCstudents or staffCto 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,Wildmon 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 Wildmon=s inquiry, a student allowed him to listen to
the song on the student=s cellphone. Wildmon 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 McNeece, she asked whether Bell meant that the teachers were
having sexual relations with students, to which Bell responded that the lyrics
meant the teachers were Amessing with kids@Cnot having sexual relations with
them. Bell testified, somewhat differently, that he told the school officials
that Aeverything [he] said in the song was true.@ According to Bell, the school
Moreover, as discussed at greater length infra, an examination of those Facebook comments
(e.g., AHey, don=t forget me when you=re famous@ and ALol. . . Mane Im tellin you cuz . . . been
tellin you since we was little . . . keep fuckin with it man you got all the talent in the world .
. .@) and Bell=s response to them (e.g., Athanks mane . . . I JUST NEED A BIG BREAK
THROUGH . . . no wut I mean??@) undermines the dissent=s contention that the song was
viewed or reasonably could have been viewed as a genuine threat of violence by Bell against
the coaches rather than the artistic expression of an aspiring rap musician seeking fame and
fortune.
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No. 12-60264
officials never suggested that Wildmon or Rainey felt threatened; instead, it
seemed to Bell, the problem was that Wildmon felt as though Ahis 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, 22 which
included various sound effects, a slideshow, 23 and a brief monologue at the
conclusion. In this monologue, Bell explained the genesis of his song:
A lot of people been asking me lately you know what was my
reasoning behind creating P.S. Koaches. It=s . . . something that=s
been going on . . . for a long time [] that I just felt like I needed to
address. I=m an artist . . . I speak real life experience. . . . The way
I look at it, one day, I=m going to have a child. If something like
this was going on with my child . . . it=d be >4:30.= 24 . . . That=s just
how it is . . .
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, Amore 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
22 He explained that the version initially posted to Facebook had been a Araw@ and
Aunfinished@ copy of the song.
23 The record lacks details about the precise contents of the slideshow.
24 Bell explained that A4:30@ means Ait=s over@ or AI=m leaving.@
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No. 12-60264
anyone at schoolCstudents or staffCto 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.
B.
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
Athreaten[ed], intimidat[ed], and/or harass[ed] one or more school teachers.@ 25
Bell and his mother, Dora Bell, were present and were represented by counsel.
At the beginning of the hearing, Principal Wiygul presented a brief summary
of the events leading up to the disciplinary hearing. The Committee then
listened to the YouTube version of the song.
Bell was asked why he composed, recorded, and posted the song. He
explained that he had written the rap song in response to the coaches=
inappropriate behavior toward female students. He testified that he did not
believe that telling the school authorities about the coaches= misconduct would
have accomplished anything because school officials had failed to respond to
25 During the hearing, Bell=s counsel requested information about the initial decision
by school officials to suspend Bell and what the basis for that decision had been. Floyd
responded that those issues were not the purpose of the hearing, explaining again that the
hearing=s purpose was to determine if Bell had harassed, intimidated, or threatened teachers
through his off-campus posting of his song on the Internet. In addition, when Bell=s attorney
sought to bring attention to affidavits from the female students corroborating the song=s
accusations, Floyd stated that the Committee would not consider at the proceeding the truth
or merits of the female students= allegations that the coaches sexually harassed them.
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No. 12-60264
other students= complaints in the past. 26 During the hearing, Bell presented
letters from female students corroborating the allegations of the coaches=
misconduct. The Committee stated that the Board was concerned about the
coaches= possible misconduct and would investigate those allegations, but it
explained that those allegations were not relevant to Bell=s hearing.
The Committee also questioned Bell about his intentions with respect to
the song and whether the violent lyrics reflected an intention to harm the
coaches. Bell conveyed that the song was a form of artistic expression
meant to reflect his real-life experiences 27 and to increase awareness of the
situation. Bell explained that the lyrics were not intended to intimidate,
threaten, or harass Wildmon or Rainey. However, he indicated that the lyrics
did reflect the possibility that a parent or relative of one of the female students
might eventually react violently upon learning that the coaches were harassing
their childrenCnot that Bell would react violently. 28 Bell explained that he
uploaded the remastered version of the song to YouTube because he wanted
people to Aclearly understand@ his intentions with respect to the song and that
26 His testimony was unclear whether he meant that school officials failed to respond
to student complaints generally or to complaints specifically concerning the allegations made
in the song.
27 The dissent concludes that Bell=s statement that he was writing about real-
experiences is an indication that Bell=s rap was not rhetorical but instead constituted a real
threat of violence. To the contrary, when Bell stated that he was writing about real-life
experiences, he was referring to the real-life experience of male high school coaches sexually
harassing female students.
28 Specifically, Bell stated: AI didn=t say that I was going to do that. . . . I=m from the
country. And you know, I know how people are. . . . Eventually . . . somebody=s parents . . .
or their brother . . . or their big sister or somebody might get word . . . I was just foreshadowing
something that might happen. . . . I wasn=t saying that I was going to do that.@ One of the
Committee members indicated that she agreed with Bell, stating A. . . it sound like to me you
were saying that if they don=t stop what they=re doing then a parent kinda is gonna do that,
not really him [indicating Bell].@
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No. 12-60264
the YouTube version was more targeted at record labels than the Facebook
version. He also explained that he did not tell anyone to listen to the song at
school.
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 Wildmon 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.
At the very end of the hearing, one of the Committee members provided
the following admonition to Bell: AI would say censor your material. . . . Because
you are good [at rapping], but everybody doesn=t really listen to that kind of
stuff. So, if you want to get [] your message out to everybody, make it where
everybody will listen to it. . . . You know what I=m saying? Censor that stuff.
Don=t put all those bad words in it. . . . The bad words ain=t making it better. .
. Sometimes you can make emotions with big words, not bad words. You know
what I=m saying? . . . Big words, not bad words. Think about that when you
write your next piece.@ 29
The dissent is mistaken in asserting that one member of the Committee
29
Aexplain[ed] there would have been no problem with the rap recording or its vulgar language
if it had not included threats against school employees.@ It is true that one Committee
member indicated that Bell should not have Aput names@ in the rap (noting that she does not
use real names when she writes poetry), from which the dissent apparently derives its
misinterpretation. However, that member subsequently admonished Bell to use Abig words,
not bad words@ in his raps and to Acensor that stuff,@ thus providing Bell poetic or artistic
advice. That Committee member did not characterize the statements in Bell=s rap as
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No. 12-60264
The next day, 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 letter stated that the Committee had concluded that whether Bell=s
song constituted a Athreat to school district officials was vague.@ 30 But the
Committee did find that the song harassed and intimidated the coaches in
violation of Itawamba School Board policy 31 and unspecified state law.
The School Board affirmed the Disciplinary Committee=s decision on
February 7, 2011, which was memorialized in a letter sent to Dora Bell from
Floyd on February 11, 2011. In that letter, Floyd stated: AAs you are aware,
[the Board] determined that Taylor Bell did threaten, harass and intimidate
school employees in violation of School Board policy and Mississippi State
Law.@ 32 The Board did not assign any additional reasons for its decision.
threatening.
30Specifically, the letter stated: ABased on the testimony given at the due process
hearing on January 26, 2011, the Discipline Committee determined that the issue of whether
or not lyrics published by Taylor Bell constituted threats to school district teachers was
vague; however, they determined that the publication of those lyrics did constitute
harassment and intimidation of two school district teachers, which is a violation of School
Board Policy and state law.@ The proceedings before the Committee were audio-recorded
but were not transcribed; only a sound recording of it is in the record.
The School District=s ADisciplineBAdministrative Policy@ prohibits A[h]arassment,
31
intimidation, or threatening other students and/or teachers.@
32 Specifically, Floyd=s letter stated: AAs you are aware, on February 7, 2011, the
Itawamba County Board of Education determined that Taylor Bell did threaten, harass and
intimidate school employees in violation of School Board policy and Mississippi State Law.
As a result, the recommendations of the disciplinary hearing were upheld by the Board of
Education.@ The Board did not cite the state law to which it referred; nor has it done so in
its litigation documents. Floyd=s letter does not explain the difference between the
Committee=s finding that the issue of whether Bell=s lyrics constituted a threat was Avague@
and the School Board=s finding that Bell had Athreatened, intimidated, and harassed@ the
teachers. The record is unclear regarding the exact evidence presented to the School Board.
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No. 12-60264
C.
Taylor and Dora Bell filed this civil action under 42 U.S.C. ' 1983 on
February 24, 2011, in the United States District Court for the Northern
District of Mississippi 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. 33 Bell sought nominal damages and
injunctive relief ordering reinstatement of his school privileges, expungement
from his school records of all references to the incident, and prevention of the
defendants from enforcing the school disciplinary code against students for
expression that takes place outside of the school or school-sponsored activities,
as well as attorneys= fees and costs.
On March 10, 2011, the district court held a hearing on the preliminary-
injunction motion. At the hearing, a number of different witnesses testified,
including the two coaches named in the song. Rainey testified that he had not
heard the song and felt it was Ajust a rap,@ not to be taken seriously, and that
he felt that if he Alet it go, it [would] probably just die down.@ However, he
stated that the song had Aaffected@ the way he Atalk[ed] to kids,@ leading him
to avoid interactions with students that might be interpreted as being
Based on the testimony of school officials at the preliminary-injunction hearing, the Board=s
decision apparently was based on the same audio-recording of Bell=s song heard by the
Disciplinary Committee.
33 The complaint also alleged that defendants violated Dora Bell=s Fourteenth
Amendment substantive-due-process right to control her child=s upbringing. As noted
supra, the district court granted summary judgment for the defendants on this claim, and
the Bells have not appealed that determination.
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No. 12-60264
inappropriate. For example, he indicated that he felt the song had affected
his ability to act like a Aparent figure@ to students. He also testified that
students had begun spending more time in the gym since the posting of the
song, but he could not confirm this was a result of Bell=s song. Rainey further
testified that most of the talk amongst students has been about Bell=s
suspension and transfer to alternative school.
Wildmon testified that the song caused him to be more cautious around
students and to avoid the appearance that he was behaving inappropriately
toward them. 34 He further testified that students around him Aseem[ed] to
act normal@ after the song was published to the Internet. Wildmon said that
he took the lyrics Aliterally@ and that he felt Ascared@ after hearing the song
since Ayou never know in today=s society . . . what somebody means, how they
mean it.@ In this regard, Wildmon testified that, after hearing the song, he
would not let his players leave basketball games until after he was in his
vehicle. In addition, Wildmon denied ever texting Aa girl, like No. 25, on the
basketball team,@ as referenced in the song=s lyrics. Otherwise, there is no
indication that either party questioned the coaches about the truth or falsity
of the female students= allegations.
At the conclusion of the hearing, the district court denied the motion for
the preliminary injunction as moot because Bell had only one day of alternative
school remaining. Thereafter, following the parties= filing of cross-motions for
summary judgment, the district court granted summary judgment in favor of
the Defendants. The court concluded that, pursuant to Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969), the song=s lyrics
34 For example, Wildmon stated: AI tried to make sure, you know, if I=m teaching, and
if I=m scanning the classroom, that I don=t look in one area too long. I don=t want to be
accused of, you know, staring at a girl or anything of that matter.@
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No. 12-60264
Ain 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.@ Specifically, the court stated that Wildmon=s and Rainey=s
testimony that the song Aadversely affected@ their teaching styles constituted
an Aactual disruption@ to school activities. The court also concluded that it
was Areasonably foreseeable@ that the song, which Alevies charges of serious
sexual misconduct against two teachers using vulgar and threatening
language and . . . is published on Facebook.com to at least 1,300 >friends= . . .
and the unlimited internet audience on YouTube.com, would cause a material
and substantial disruption at school.@ The Bells timely appealed.
II.
We review a district court=s grant of summary judgment de novo,
applying the same standard as the district court. See Mesa v. Prejean, 543
F.3d 264, 269 (5th Cir. 2008). A[S]ummary judgment is proper >if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.=@ Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting
Fed. R. Civ. P. 56(c)). AWhen parties file cross-motions for summary
judgment, >we review each party=s motion independently, viewing the evidence
and inferences in the light most favorable to the nonmoving party.=@ Duval v.
Northern Assur. Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013) (quoting Ford
Moto Co. v. Tex. Dep=t of Transp., 264 F.3d 493, 498 (5th Cir. 2001)).
III.
The principal issue presented by this case is whether a public high school
violated the First Amendment by punishing a student for his off-campus
speech, viz., his rap song posted on the Internet that criticized two male
16
No. 12-60264
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, interpreting
Tinker v. Des Moines Independent Community School District as applying
directly to students= off-campus speech, as well as their on-campus speech, held
that the School Board had authority to regulate and punish Bell=s speech
because the evidence established that his rap song had Ain fact@ substantially
disrupted the school=s work and discipline and that it was Areasonably
foreseeable@ that the song would cause such a disruption. 859 F. Supp. 2d
834, 840 (N.D. Miss. 2012). We reverse the district court=s application of
Tinker as legally incorrect, and conclude that Tinker could not afford the School
Board a defense in this case because the summary-judgment evidence and
materials do not support the conclusion that a material and substantial
disruption at school actually occurred or reasonably could have been
forecasted.
Contrary to the district court=s conclusions, id. at 837B38, the Supreme
Court=s Astudent-speech@ cases, including Tinker, do not address students=
speech that occurs off campus and not at a school-approved event. The Court
has not decided whether, or, if so, under what circumstances, a public school
may regulate students= online, off-campus speech, and it is not necessary or
appropriate for us to anticipate such a decision here. Even if Tinker were
applicable to the instant case, the evidence does not support the conclusion, as
required by Tinker, that Bell=s Internet-posted song substantially disrupted
the school=s work and discipline or that school officials reasonably could have
forecasted that it would do so. Moreover, we reject the School Board=s
alternative argument that the plainly rhetorical use of violent language
contained in Bell=s song falls within this court=s narrow holding in Ponce v.
17
No. 12-60264
Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007), that student
speech threatening a Columbine-style mass school shooting was not protected
by the First Amendment. Furthermore, in light of the rap=s factual context,
its lyrics= conditional nature, and the reactions of its listeners, we likewise
reject the argument that Bell=s rap song was excepted from First Amendment
protections because it constituted a Atrue threat.@
A.
AThat courts should not interfere with the day-to-day operations of
schools is a platitudinous but eminently sound maxim which this court has
reaffirmed on many occasions.@ Shanley v. Northeast Indep. Sch. Dist., 462
F.2d 960, 967 (5th Cir. 1972). Nevertheless, this court Alaid to rest@ more than
a half century ago Athe notion that state authorities could subject students at
public-supported educational institutions to whatever conditions the state
wished.@ See id. (citing Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th
Cir. 1961)). AAnd of paramount importance is the constitutional imperative
that school boards abide constitutional precepts: >The Fourteenth Amendment,
as now applied to the States, protects the citizen against the State itself and
all of its creaturesCBoards of Education not excepted.=@ Id. (citing West
Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). Thus, A[t]he
authority possessed by the State to prescribe and enforce standards of conduct
in its schools, although concededly very broad, must be exercised consistently
with constitutional safeguards,@ including the dictates of the First
Amendment. See Goss v. Lopez, 419 U.S. 565, 575 (1975).
Because speech is often provocative and challenging, and may strike at
prejudices and preconceptions and have profoundly unsettling effects as it
presses for the acceptance of an idea or cause, the First Amendment protects
speech against restriction or punishment by the government. Cox v.
18
No. 12-60264
Lousiana, 379 U.S. 536 (1965); see also Texas v. Johnson, 491 U.S. 397, 408B10,
414 (1989); Hustler Magazine v. Falwell, 485 U.S. 46, 54B57 (1988); Cohen v.
California, 403 U.S. 15 (1971). In Tinker, the Supreme Court considered
whether the First Amendment=s protections against government censorship
apply to student speech inside public schools. The Court recognized that
students do not Ashed their constitutional rights to freedom of speech or
expression at the schoolhouse gate,@ but also observed that those rights must
be calibrated Ain light of the special characteristics of the school environment.@
393 U.S. at 506B07. To reconcile these competing interests, the Court
fashioned a rule that has become the touchstone for assessing the scope of
students= on-campus First Amendment rights ever since: while on campus, a
student is free to Aexpress his opinions, even on controversial subjects, if he
does so without >materially and substantially interfer(ing) with the
requirements of appropriate discipline in the operation of the school= and
without colliding with the rights of others.@ Id. at 513 (quoting Burnside v.
Byars, 363 F.2d 744, 749 (5th Cir. 1966)). However, speech by the student
that Amaterially 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.@ Id. at 513.
Therefore, under Tinker, school officials may prohibit student speech and
expression upon showing Afacts which might reasonably have led school
authorities to forecast [that the proscribed speech would cause] substantial
disruption of or material interference with school activities.@ Id. at 514.
School officials Amust be able to show that [their] action[s] [were] caused by
something more than a mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint.@ Id. at 509. It is a school=s
burden to prove that its suppression of student speech conforms with this
19
No. 12-60264
governing standard. 35 Id. at 511B14; see also Shanley, 462 F.2d at 969 (AWhen
the constitutionality of a school regulation is questioned, it is settled law that
the burden of justifying the regulation falls upon the school board.@).
This court has further elaborated on Tinker=s substantial-disruption
standard. AAlthough school officials may prohibit speech based on a forecast
that the prohibited speech will lead to a material disruption, the proscription
cannot be based on the officials= mere expectation that the speech will cause
such a disruption.@ A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 221 (5th Cir.
2009). Further, school officials Amust base their decisions >on fact, not
intuition, that the expected disruption would probably result from the exercise
of the constitutional right and that foregoing such exercise would tend to make
the expected disruption substantially less probable or less severe.=@ Id. at 221-
22 (quoting Butts v. Dallas Indep. Sch. Dist., 436 F.2d 728, 731 (5th Cir.
1971)); see also Butts, 436 F.2d at 732 (A[T]here must be some inquiry, and
establishment of substantial fact, to buttress the determination.@); Shanley,
462 F.2d at 970 (A[T]he board cannot rely on ipse dixit to demonstrate the
>material and substantial= interference with school discipline.@).
Since Tinker, the Supreme Court has recognized that, even if on-campus
speech or speech at school-approved events is non-disruptive within the
meaning of Tinker, school officials may restrict that speech in a limited set of
circumstances: if it is lewd or vulgar, Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 685 (1986), if it is school-sponsored and the restriction is Areasonably
35 AIn order for the State in the person of school officials to justify prohibition of a
particular expression of opinion, it must be able to show that its action was caused by
something more than a mere desire to avoid the discomfort and unpleasantness that always
accompany an unpopular viewpoint. Certainly where there is no finding and no showing
that engaging in the forbidden conduct would >materially and substantially interfere with the
requirements of appropriate discipline in the operation of the school,= the prohibition cannot
be sustained.@ Id. at 509 (citing Burnside, 363 F.2d at 749).
20
No. 12-60264
related to legitimate pedagogical concerns,@ Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260, 273 (1988), or if it is reasonably viewed as promoting the use of
illegal drugs, Morse v. Frederick, 551 U.S. 393, 403 (2007). However, in all of
these cases, the speech at issue occurred on campus or at a school-approved
event where the school=s conduct rules expressly applied. Moreover,
members of the Court have taken great pains to emphasize that these
exceptions to the Tinker Asubstantial-disruption@ test are narrowly confined
and do not provide school officials with broad authority to invoke the Aspecial
characteristics of the school environment@ in order to circumvent their burden
of satisfying the Tinker test in factual scenarios that do not fit within the
exceptions to Tinker established by Fraser, Hazelwood, and Morse. See, e.g.,
Morse, 551 U.S. at 422B23 (Alito, J., concurring) (AI join the opinion of the Court
on the understanding that (1) it goes no further than to hold that a public
school may restrict speech that a reasonable observer would interpret as
advocating illegal drug use and (2) it provides no support for any restriction of
speech that can plausibly be interpreted as commenting on any political or
social issue, including speech on issues such as >the wisdom of the war on drugs
or of legalizing marijuana for medicinal use.=@) (internal citation omitted).
Contrary to the district court=s conclusion, 36 the Supreme Court in
Tinker did not hold that the Asubstantial-disruption@ test applies to off-campus
speech. Instead, when the Court stated that, A[a] student=s rights . . . do not
embrace merely the classroom hours@ and that, Aconduct by the student, in
class or out of it, which . . . materially disrupts . . . is, of course, not immunized
36 The district court erroneously concluded that Athe U.S. Supreme Court in Tinker
specifically ruled that off-campus conduct causing material or substantial disruption at
school can be regulated by the school.@ See Bell, 859 F. Supp. 2d at 837B38.
21
No. 12-60264
by the constitutional guarantee of freedom of speech[,]@ Tinker, 393 U.S. at
512B13, the Court was simply indicating that the delicate balance between the
protection of free speech rights and the regulation of student conduct extends
to all facets of on-campus student speech and not just that occurring within
the classroom walls. Accordingly, the Court further stated, AWhen he is in the
cafeteria, or on the playing field, or on the campus during the authorized hours,
he may express his opinions, even on controversial subjects like the conflict in
Vietnam, if he does so without >materially and substantially interfer(ing) with
the requirements of appropriate discipline in the operation of the school= and
without colliding with the rights of others.@ Id. (internal citation omitted).
When read in context, the Tinker Court did not intend that its holding would
allow a public school to regulate students= freedom of speech at home and off
campus. 37 Rather, the Court meant that the governing analysis would apply
Ain class or out of@ the classroom while the student is on campus during
37 The dissent erroneously contends that Atechnological developments,@ especially the
Internet, have Arendered the distinction [between on- and off-campus speech] obsolete.@
Although we certainly acknowledge that the Internet has yielded previously uncontemplated
factual scenarios that pose difficult questions, it is not our place to anticipate that the
Supreme Court will hold that the Internet has vitiated the distinction between on- and off-
campus student speech, thus expanding the authority of school officials to regulate a
student=s speech when he or she is at home during non-school hours. Accord Morse, 551 U.S.
at 424 (Alito, J., concurring) (AIt is a dangerous fiction to pretend that parents simply delegate
their authorityBincluding their authority to determine what their children may say and
hearBto public school authorities.@); Shanley, 462 F.2d at 964 (AIt should have come as a shock
to the parents of five high school seniors . . . that their elected school board had assumed
suzerainty over their children before and after school, off school grounds, and with regard to
their children=s rights of expressing their thoughts. We trust that it will come as no shock
whatsoever to the school board that their assumption of authority is an unconstitutional
usurpation of the First Amendment.@). Further, it is especially inappropriate for us to
pronounce such a consequential rule in the present case, where the evidence does not support
a conclusion that the speech has caused, or reasonably could have been forecasted to cause,
a substantial disruption of the school=s work or discipline.
22
No. 12-60264
authorized hours. The Court=s subsequent student speech cases make this
distinction clear. See Hazelwood, 484 U.S. at 266. 38
38 A number of circuit courts have dealt with the question of Tinker=s reach beyond
the schoolyard. The Second, Fourth, and Eighth Circuits have concluded that Tinker
applies to off-campus speech in certain circumstances. See, e.g., Doninger v. Niehoff, 527
F.3d 41 (2d Cir. 2008) (student disqualified from running for class secretary after posting a
vulgar and misleading message about the supposed cancellation of an upcoming school event
on a web log from home); Kowalski v. Berkeley County Schs., 652 F.3d 565 (4th Cir. 2011)
(student suspended for creating and posting to a MySpace webpage that was largely
dedicated to ridiculing a fellow student); S.J.W. v. Lee=s Summit RB7 Sch. Dist., 696 F.3d 771
(8th Cir. 2012) (students suspended for creating website with offensive and racist comments
discussing fights at their school and mocking black students, as well as sexually explicit and
degrading comments about particular female classmates). These circuits have imposed
their own unique threshold tests before applying Tinker to speech that originates off campus.
For example, the Eighth Circuit requires that it be Areasonably foreseeable that the speech
will reach the school community,@ S.J.W., 696 F.3d at 777, while the Fourth Circuit requires
that the speech have a sufficient Anexus@ to the school. Kowalski, 652 F.3d at 573.
This court, along with the Third Circuit, has left open the question of whether the
Tinker Asubstantial-disruption@ test can apply to off-campus speech. In J.S. ex rel. Snyder
v. Blue Mountain Sch. Dist., 650 F.3d 915, 926, 930 (3d Cir. 2011) (en banc), the Third Circuit
assumed, without deciding, that Tinker applied to a student=s creation of a parody MySpace
profile mocking the school principal, but held that it was not reasonably foreseeable that the
speech would create a substantial disruption. In a separate concurrence, five judges
expressed their position that Tinker does not apply to off-campus speech and that Athe First
Amendment protects students engaging in off-campus speech to the same extent it protects
speech by citizens in the community at large.@ Id. at 936 (Smith, C.J., concurring). In
another Third Circuit en banc case decided the same day as Snyder, and also involving a
principal parody profile, the school district did Anot dispute the district court=s finding that
its punishment of [the student] was not appropriate under Tinker.@ Layshock v. Hermitage
Sch. Dist., 650 F.3d 205, 216 (3d Cir. 2011) (en banc). The school district relied instead on
Fraser. Id. But the court went on to note that Fraser did not allow the school Ato punish
[the student] for expressive conduct which occurred outside of the school context.@ Id. at 219.
In Porter v. Ascension Parish School Board, this court similarly left open the question of
whether Tinker applied to off-campus student speech. 393 F.3d 608, 615B16 n.22 (5th Cir.
2004) (student=s sketch depicting violent siege on school was speech protected by the First
Amendment and not Aon-campus@ speech subject to school regulation, where student had
completed drawing in his home, stored it for two years, and never intended to bring it to
campus, but rather stored it in closet where it remained until, by chance, it was unknowingly
taken to school by his brother; but principal was not objectively unreasonable and therefore
entitled to qualified immunity and plaintiff=s claim against school officials in their official
capacity was waived because plaintiff failed to brief the issue).
23
No. 12-60264
In the instant case, the School Board may not assert Tinker as a defense
because, even assuming arguendo that the Tinker Asubstantial-disruption@ test
could be applied to a student=s off-campus speech, 39 the summary-judgment
39 The dissent erroneously contends that this court=s decisions in Sullivan v. Houston
Independent School District, 475 F.2d 1071 (5th Cir. 1973), and Porter v. Ascension Parish
School Board, 393 F.3d 608, 615B16 n.22 (5th Cir. 2004), hold that Tinker applies to off-
campus speech, such as Bell=s. This is a patent misreading of those decisions. In Sullivan,
the court did not apply the Tinker substantial-disruption test to assess whether school
officials violated the First Amendment. The Sullivan court recognized that there is nothing
per se unreasonable about requiring a high school student to submit written material to
school authorities prior to distribution on campus or resulting in a presence on campus, and
that it could not be seriously urged that the school=s prior submission rule is
unconstitutionally vague or overbroad. 475 F.2d at 1076 (citing Shanley, 462 F.2d at 960;
Pervis v. LaMarque Independent Sch. Dist., 466 F.2d 1054 (5th Cir. 1972)). Instead, the
court held that the school principal had disciplined a student for failure to comply with the
school=s rules requiring prior submission to the school principal of all publications, not
sponsored by the school, which were to be distributed on the campus or off campus in a
manner calculated to result in their presence on the campus. Id. The student was
disciplined for twice selling newspapers at the entrance of the school campus, to persons
entering therein, without making prior submission of the papers, and for using profanity
towards the principal (Athe common Anglo-Saxon vulgarism for sexual intercourse@) and in
the presence of the principal=s assistants (specifically, AI don=t want to go to this goddamn
school anyway@). Id. at 1074. Thus, notwithstanding the Sullivan court=s references to
Tinker in that decision, that opinion did not apply the Tinker substantial-disruption test to
off-campus speech.
This court in Porter did not hold that the Tinker substantial-disruption test applies to
off-campus speech. 393 F.3d at 615 n.22. The court concluded that the speech involved in
PorterCviz., a drawing depicting school violence that was inadvertently taken to campus by
the student=s brotherCconstituted off-campus speech for which the Tinker substantial-
disruption test did not apply. Id. at 615. The court found that the circumstances involved
in Porter were Aoutside the scope@ of those involved in other non-Fifth Circuit cases which
have held that in certain situations off-campus speech that is later brought on campus may
be subject to the Tinker substantial-disruption analysis. Id. at 615 n.22. In dicta, the
court acknowledged those other cases applying Tinker to certain categories of off-campus
speech and noted that its Aanalysis today is not in conflict with this body of case law.@ Id.
However, given the facts before it, the Porter court was not in a position to decide whether,
and under what circumstances, Tinker applied to off-campus speech.
Thus, contrary to the dissent=s assertion, the applicability of the Tinker substantial-
disruption test to off-campus speech like Bell=s remains an open question in this circuit.
However, as explained herein, we need not resolve that consequential question because the
School Board did not demonstrate that Bell=s song caused or reasonably could have caused a
substantial disruption. In so doing, we are guided by the A>older, wiser judicial counsel >not
to pass on questions of constitutionality . . . unless such adjudication is unavoidable.==@
Pearson v. Callahan, 555 U.S. 223, 241 (2009) (quoting Scott v. Harris, 550 U.S. 372, 388
24
No. 12-60264
evidence establishes that no substantial disruption ever occurred, nor does it
Ademonstrate any facts which might reasonably have led school authorities to
forecast substantial disruption of or material interference with school
activities.@ Tinker, 393 U.S. at 514. Viewing the evidence in the light most
favorable to the School Board, there was no commotion, boisterous conduct,
interruption of classes, or any lack of order, discipline and decorum at the
school, as a result of Bell=s posting of his song on the Internet. Cf. Shanley,
462 F.2d at 970 (ADisruption in fact is an important element for evaluating the
reasonableness of a regulation screening or punishing student expression.@).
Indeed, the School Board=s inability to point to any evidence in the record of a
disruption directly undermines its argument and the district court=s conclusion
that the summary- judgment evidence supports a finding that a substantial
disruption occurred or reasonably could have been forecasted. At the
preliminary injunction hearing, Wildmon explained that his students
Aseem[ed] to act normal@ after the posting of the song, and Rainey testified that
most of the talk amongst students had not been about Bell=s song but rather
about his suspension and transfer to alternative school. No evidence was
offered that Bell or any other student listened to the song on campus, aside
from the single instance when Wildmon had a student play the song for him
on his cellphone. The only particularized evidence 40 of a purported
(2007) (Breyer, J., concurring); Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944));
see also Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (AThe Court
will not pass upon a constitutional question although properly presented by the record, if
there is also present some other ground upon which the case may be disposed of.@).
40 Defendants point to Rainey=s claim that Asince the song came out, students have
started to mingle [in the gym]@ as evidence of a substantial disruption. However, there is
no evidence that the student=s mingling was improper or anything but a coincidence, nor is
there evidence that such student Amingling@ could reasonably be considered a substantial or
material disruption.
25
No. 12-60264
disruption that the defendants or the district court identified as stemming
from Bell=s song was that Rainey and Wildmon have altered their teaching
styles in order to ensure they are not perceived as engaging in inappropriate
conduct with female students. 41 However, the teachers= alteration of their
teaching styles in order to avoid accusations of sexual harassment does not
constitute the material and substantial disruption of school work or discipline
that would justify the restriction of student speech under Tinker.
Furthermore, even if we were to credit the School Board=s unsupported
assertion that it indeed forecasted a disruption as a result of Bell=s song, 42
the summary-judgment evidence nevertheless shows that there are no facts
that Amight reasonably have led@ the School Board to make such a forecast.
Tinker, 393 U.S. at 514. The summary-judgment evidence conclusively shows
that Bell=s song was composed, recorded, and posted to the Internet entirely off
campus. School computers blocked Facebook and school policy prohibited
possession of telephones, thus diminishing the likelihood that a student would
access the song on campus. Moreover, as discussed at greater length infra,
the violent lyrics contained in Bell=s song were plainly rhetorical in nature, and
could not reasonably be viewed as a genuine threat to the coaches, as
41 At the preliminary-injunction hearing on March 10, 2011, Superintendent
McNeece, when asked directly if she was aware of any disruption, could point only to the
evidence that teachers had altered their teaching style in response to Bell=s song, which both
Wildmon and Rainey explained was an effort to avoid any appearance of impropriety with
students. As explained herein, teachers= efforts to avoid the appearance of such
improprieties does not constitute a Asubstantial disruption@ of school work or discipline under
the Tinker standard.
42 Although it may not be dispositive, we observe that none of the school personnel
even mentioned the term Adisruption@ at the January 26, 2011 Disciplinary Committee
hearing; and there is no evidence reflecting that the School Board in its ruling on February
7, 2011 found that a disruption occurred or reasonably could have been forecasted as a result
of Bell=s song.
26
No. 12-60264
underscored by the Disciplinary Committee=s own determination that whether
Bell=s song constituted a threat was Avague.@
As we have emphasized, the facts simply do not support a conclusion that
Bell=s song led to a substantial disruption of school operations or that school
officials reasonably could have forecasted such a disruption. Nevertheless, in
support of its argument that the School Board acted in accordance with Tinker,
the dissent relies upon the School Board=s policy of classifying threats,
harassment, and intimidation of teachers as a Asevere disruption.@ 43 Under
the dissent=s deferential view, certain categories of speech can be Ainherently
disruptive@ within the meaning of Tinker so long as school officials categorize
them as such by their own ipse dixit (such as the School Board=s ASevere
Disruption@ policy), thus rendering unnecessary any meaningful inquiry into
whether the speech in fact did, or reasonably could, cause a substantial
disruption as required by Tinker. Contrary to the dissent=s argument, the
School Board cannot carry its burden of demonstrating a substantial
disruption or a reasonable forecast of one simply by relying on its own policy
or regulation. AThe Fourteenth Amendment, as now applied to the States,
protects the citizen against the State itself and all of its creaturesCBoards of
Education not excepted.@ Barnette, 319 U.S. at 637. AThe authority
possessed by the State to prescribe and enforce standards of conduct in its
schools, although concededly very broad, must be exercised consistently with
constitutional safeguards.@ Goss, 419 U.S. at 574. Moreover, Tinker held
that school officials cannot circumvent their burden of showing that a
43 This policy lists sixteen different Aoffenses@ under the heading ASevere
Disruptions.@ We note that, by its very terms, the other Aoffenses@ qualifying as Asevere
disruptions@ under this policy suggest that the policy relates to on-campus conduct (e.g.,
Arunning in the hall,@ Aunnecessary noise in the hall,@ Agambling or possession of gambling
devices at school@), not to off-campus conduct, like Bell=s.
27
No. 12-60264
substantial disruption occurred, or can be reasonably forecasted, by simply
adopting a policy that categorizes certain speech as a severe or substantial
disruption without any reasonable factual predicate that such speech would
likely lead to substantial disruption of school work or discipline. Tinker, 393
U.S. at 504, 511 (holding that school officials could not adopt and enforce policy
prohibiting students from wearing armbands without a showing that such
regulation was necessary to avoid material or substantial disruption); accord
Shanley, 462 F.2d at 970 (A[T]he board cannot rely on ipse dixit to demonstrate
the >material and substantial= interference with school discipline. Put another
way, Tinker requires that presumably protected conduct by high school
students cannot be prohibited by the school unless there are >. . . facts which
might reasonably have led school authorities to forecast substantial disruption
of or material interference with school activities.=@) (quoting Tinker, 393 U.S.
at 514).
B.
The School Board alternatively and erroneously attempts to invoke this
court=s decision in Ponce v. Socorro Independent School District, 508 F.3d 765
(5th Cir. 2007), in arguing that Bell=s off-campus, but on-line, rap was not
protected by the First Amendment. In Ponce, this court analogized to the
Supreme Court=s decision in Morse 44 and narrowly held that a student=s
44 In Morse, a high school student unfurled a 14-foot banner bearing the phrase
ABONG HiTS 4 JESUS@ during a school-sanctioned and supervised event. 551 U.S. at 397.
The principal confiscated the banner and suspended the student. Id. at 398. The student
filed suit under 42 U.S.C. ' 1983 against the principal and the School Board, claiming that
the principal=s actions violated his First Amendment rights. Id. at 399.
The Morse decision resulted in a narrow holding: a public school may prohibit student
speech at school or at a school-sponsored event during school hours that the school
Areasonably view[s] as promoting illegal drug use.@ Id. at 408. Indeed, Justice Alito=s
concurrence stated that he joined the majority opinion Aon the understanding that (a) it goes
no further than to hold that a public school may restrict speech that a reasonable observer
would interpret as advocating illegal drug use and (b) it provides no support for any
28
No. 12-60264
notebook which contained his plans to commit a coordinated AColumbine-style@
shooting attack on his high school and other district schools was not protected
by the First Amendment. Id. at 771 n.2. Ponce involved particularly
egregious facts: a student brought to campus a notebook containing numerous
violent and disturbing descriptions of campus violence evocative of the school
shootings that have taken place across the country in recent years. We
explained that we were following the lead of the Supreme Court in Morse in
holding that such speech is not protected because it poses a direct and
demonstrable threat of violence unique to the school environment. 45
Specifically, we observed: AIf school administrators are permitted to prohibit
student speech that advocates illegal drug use because >illegal drug use
presents a grave and in many ways unique threat to the physical safety of
students,= . . . then it defies logical extrapolation to hold school administrators
to a stricter standard with respect to speech that gravely and uniquely
threatens violence, including massive deaths, to the school population as a
whole.@ Id. at 771B772 (quoting Morse, 551 U.S. at 425).
Reading Justice Alito=s concurring opinion, in which Justice Kennedy
joined, as controlling in Morse, we recognized that Morse holds only that
restriction of speech that can plausibly be interpreted as commenting on any political or social
issue.@ Id. at 422 (Alito, J., with whom Justice Kennedy joins, concurring). Justice Alito
also made clear that he joined the majority only insofar as Athe opinion does not hold that the
special characteristics of the public schools necessarily justify any other speech restrictions@
beyond those articulated in the Supreme Court=s prior student speech cases. Id. at 423. As
made strikingly clear by Justice Alito=s concurrence, Morse therefore in no way expands
school officials= authority to restrict student speech on social or political matters; rather, the
decision held only that schools have the limited authority to restrict speech at school or a
school-approved event that could be reasonably viewed as promoting illegal drug use.
45 The court observed: ASuch shootings exhibit the character that the concurring
opinion [in Morse] identifies as particular to schools. . . . This environment makes it possible
for a single armed student to cause massive harm to his or her fellow students with little
restraint and perhaps even less forewarning.@
29
No. 12-60264
Aspeech advocating a harm that is demonstrably grave and that derives that
gravity from the >special danger= to the physical safety of students arising from
the school environment is unprotected.@ Id. at 770. However, we observed
that Abecause this is a content-based regulation, the [Alito] concurring opinion
is at pains to point out that the reasoning of the court cannot be extended to
other kinds of regulations of content, for permitting such content-based
regulation is indeed at >the far reaches of what the First Amendment permits.=@
Id. (quoting Morse,551 U.S. at 425 (Alito, J., concurring)). As a result, we
recognized, consistent with Justice Alito=s concurrence, that ATinker=s focus on
the result of speech rather than its content remains the prevailing norm.@ Id.
Ponce therefore narrowly extends Morse in holding that the Tinker
analysis does not apply to speech brought to campus that Agravely and uniquely
threatens violence, including massive deaths, to the school population as a
whole.@ Id. at 772. At the same time, the Ponce opinion explicitly recognizes
the continued applicability of the Tinker substantial-disruption test for most
other types of on-campus speech. Id. at 770. Furthermore, Ponce also
recognizes that, according to Justice Alito=s controlling concurring opinion,
Morse does not expand schools= authority to restrict on-campus speech on social
or political matters. Id. at 769-70.
Applying these principles to the instant case, Bell=s song cannot be
considered to fall within the narrow exception to Tinker recognized by this
court in Ponce, thus depriving his speech of First Amendment protection. As
an initial matter, Ponce did not involve student speech occurring entirely off-
campus; rather, the student in Ponce brought his threatening diary to campus
and showed its contents to a classmate. Id. at 766. More importantly,
however, the Ponce decision explicitly pivoted on the particularized and unique
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No. 12-60264
threat of grave harm of mass school shootings posed by that student=s private
writings. Id. at 771. Indeed, the student=s notebook graphically detailed the
group=s Aplan to commit a >[C]olumbine shooting= attack@ at the student=s
school, as well as other area schools. Id. In holding such speech unprotected
by the First Amendment, the court in Ponce emphasized that its decision was
based on the fact that Athe speech in question . . . is not about violence aimed
at specific persons, but of violence bearing the stamp of a well-known pattern
of recent historic activity: mass, systematic school-shootings in the style that
has become painfully familiar in the United States.@ Id. at 770B71. In sharp
contrast, Bell=s song contains violent imagery typical of the hyperbolic rap
genre that is Aaimed at specific persons,@ rather than Abearing the stamp of . .
. mass, systematic school-shootings.@ Id. Furthermore, the song amounts
only to a rhetorical threatCnot a genuine oneCand does not come close to the
catastrophic facts threatened in Ponce, which Judge Jolly emphasized were
evocative of a AColumbine@ or AJonesboro@-style school attack. Id. at 771.
Indeed, Bell testified that he did not intend to threaten the two coaches with
his rap song; rather, the song was meant to be an artistic expression that
reflected Bell=s real-life experiences and to raise awareness of an important
issue of concern that he felt would be ignored by school officials. 46 Itawamba
46 We note that Bell=s rap song is speech on a matter of public concern. Speech
involves matters of public concern Awhen it can >be fairly considered as relating to any matter
of political, social, or other concern to the community,= or when it >is a subject of legitimate
news interest; that is, a subject of general interest and of value and concern to the public.= @
Snyder v. Phelps,131 S. Ct. 1207, 1216 (2011) (citation omitted). The arguably
Ainappropriate or controversial character of a statement is irrelevant to the question whether
it deals with a matter of public concern.@ Id. (citation omitted). Superintendent McNeece=s
own testimony at the preliminary injunction hearing explicitly confirmed that the subject
matter of Bell=s songCmale coaches= improper conduct towards female studentsCwould be of
Apublic importance.@ We need not address the district court=s disparagement of student
speech on matters of public concern, as compared to adult speech on matters of public
concern, Bell, 859 F. Supp. 2d at 841, because that was part of that court=s erroneous
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No. 12-60264
school officials= own actions demonstrate that they did not consider Bell=s song
to portend violence by him personally, much less mass school shootings as dealt
with in Ponce. 508 F.3d at 772. For example, the Disciplinary Committee
could not even conclude whether Bell=s song constituted a definite threat to
school officials, and there is no evidence that school officials ever contacted law
enforcement regarding Bell=s song. In fact, after initially informing Bell that
he was suspended pending the outcome of the disciplinary hearing, 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. Moreover,
any purported threat contained in Bell=s song was certainly a far cry from the
A>terroristic threat= to the safety and security of the students and the campus@
that the school officials encountered in Ponce. Id. at 767. We therefore
refuse to broadly extend the holding of Ponce by concluding that Bell=s song is
the equivalent of the extremely threatening notebook created and brought to
school by the student in that case.
C.
The School Board=s additional argument that Bell=s rap song falls within
the Atrue threat@ exception to the First Amendment is likewise meritless. As
explained infra, Bell=s rap was not a plainspoken threat delivered directly,
privately, or seriously to the coaches but, rather, was a form of music or art
broadcast in a public media to critique the coaches= misconduct and also in
furtherance of Bell=s musical ambitions. Moreover, Bell=s rap was not an
unconditional threat that Bell himself would physically harm the coaches; at
most, the song amounted to a conditional warning to them of possible harm
from the female students= family members if they continued to harass the
interpretation and application of Tinker which we reject herein.
32
No. 12-60264
young women. Finally, as evidenced by the reactions of the listeners
themselves, there was no reasonable or objective ground for the coaches to fear
that Bell personally would harm them.
The protections that the First Amendment affords speech and expressive
conduct are not absolute. Virginia v. Black, 538 U.S. 343, 358 (2003). The
Supreme Court has long recognized that the government may regulate certain
unprotected categories of expression consistent with the Constitution. See,
e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571B72 (1942). One such
category of unprotected speech is that which constitutes a Atrue threat.@
Watts v. United States, 394 U.S. 705 (1969). A>True threats= encompass those
statements where the speaker means to communicate a serious expression of
an intent to commit an act of unlawful violence to a particular individual or
group of individuals.@ Black, 538 U.S. at 359 (citing Watts, 394 U.S. at 708).
In Watts, the petitioner was convicted of violating a 1917 statute which
prohibits a person from Aknowingly and willfully@ making Aany threat to take
the life of or to inflict bodily harm upon the President of the United States.@
Id. (citing 18 U.S.C. ' 871(a)). As the Watts Court explained:
The incident which led to petitioner=s arrest occurred on August
27, 1966, during a public rally on the Washington Monument
grounds. The crowd present broke up into small discussion
groups and petitioner joined a gathering scheduled to discuss
police brutality. Most of those in the group were quite young,
either in their teens or early twenties. Petitioner, who himself
was 18 years old, entered into the discussion after one member of
the group suggested that the young people present should get more
education before expressing their views. According to an
investigator for the Army Counter Intelligence Corps who was
present, petitioner responded: >They always holler at us to get an
education. And now I have already received my draft classification
as 1-A and I have got to report for my physical this Monday coming.
I am not going. If they ever make me carry a rifle the first man I
want to get in my sights is L.B.J.= >They are not going to make
33
No. 12-60264
me kill my black brothers.= On the basis of this statement, the jury
found that petitioner had committed a felony by knowingly and
willfully threatening the President.
Id. at 705B06 (emphasis added).
On petition for writ of certiorari, the Supreme Court reversed, observing
that Awhatever the >willfullness= requirement [of the statute] implies, the
statute initially requires the Government to prove a true >threat.=@ Id. at 708.
The Court held that the Akind of political hyperbole@ deployed by the petitioner
could not qualify as a Atrue threat@ in light of the A>profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wideopen, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and public
officials.=@ Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270
(1964)). In this regard, the Court observed that A[t]he language of the political
arena, like the language used in labor disputes . . . is often vituperative,
abusive, and inexact.@ Id. (citing Linn v. United Plant Guard Workers of
America, 383 U.S. 53, 58 (1966). The Court concluded: AWe agree with
petitioner that his only offense here was >a kind of very crude offensive method
of stating a political opposition to the President.= Taken in context, and
regarding the expressly conditional nature of the statement and the reaction
of the listeners, we do not see how it could be interpreted otherwise.@ Id.
Applying the factors identified as instructive by the Court in WattsCi.e.,
the context and manner of the speech, its conditional nature, and the listeners=
reactions, it is clear that the rap song that Bell recorded in a professional studio
and subsequently posted on the Internet in protest of what he perceived as an
injustice occurring at his high school did not constitute a Atrue threat.@
First, with regard to context, it is important to considerCalbeit not
ultimately dispositiveCthat the purported Athreats@ were contained in a rap
34
No. 12-60264
song, a musical genre that, like other art forms, has its own unique artistic
conventions. 47 See Planned Parenthood of Columbia/Willamette, Inc. v.
American Coalition of Life Activists, 290 F.3d 1058, 1078 (9th Cir. 2002)
(AIndeed, context is critical in a true threats case and history can give meaning
to the medium.@). For example, hyperbolic and violent language is a
commonly used narrative device in rap, which functions to convey emotion and
meaningCnot to make real threats of violence. See, e.g., Andrea L. Dennis,
Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31
Colum. J.L. & Arts 1, 22 (2007) (AMetaphor plays a critical role in rap music
lyrics. . . . In rap music, metaphors not only express hope and positivity but
also >despair, stagnation, or destruction.=@) (internal citation omitted). Of
course, the use of violent rhetorical imagery in music is not exclusive to rap.
Presumably, neither the School Board nor the dissent would believe that
Johnny Cash literally Ashot a man . . . just to watch him die.@ Nor would they
likely conclude that the Dixie Chicks= hit song AGoodbye Earl@ described the
artists= own literal pre-meditated murder of a man using poisonous black-eyed
peas, or that Bob Marley Ashot the sheriff@ but spared the deputy=s life.
Indeed, as songwriters of every genre, rap artists live through invented
characters and explore roles and narrative voices, both on and offstage. 48 In
addition, the context-related evidence demonstrates that Bell, as an aspiring
rap musician who has been writing and recording music since his early teens,
47See Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and
Criminal Evidence, 31 Colum. J.L. & Arts 1, 20 (2007).
48 In this regard, contrary to the dissent=s argument, Bell=s statement that his song
reflected Areal-life@ experience, does not mean his lyrics are all literally true, rather than, in
part, rhetorical and creative.
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No. 12-60264
publicized the song not only in an effort to raise awareness of the coaches=
misconduct but also to attract the attention of record labels and potential fans.
Equally important to the context of Bell=s rap is the fact that it was
broadcast publicly over the Internet and not conveyed privately or directly to
the coaches. Courts have recognized that statements communicated directly
to the target are much more likely to constitute true threats than those, as
here, communicated as part of a public protest. 49 Compare Watts, 394 U.S. at
705B06 with United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996). The
case law shows that Ait makes a big difference@ whether the purportedly
threatening speech is Acontained in a private communicationCa face-to-face
confrontation, a telephone call, a dead fish wrapped in newspaperCor is made
during the course of public discourse. The reason for this distinction is
obvious: Private speech is aimed only at its target. Public speech, by contrast,
seeks to move public opinion and to encourage those of like mind.@ Planned
Parenthood of Columbia/Willamette, Inc., 290 F.3d at 1099 (9th Cir. 2002)
(Kozinski, J. dissenting). Indeed, as the Sixth Circuit recently observed, such
contextual cues are vital in assessing whether a reasonable listener would
49 In Porter, this circuit cited Doe v. Pulaski County Special School District, 306 F.3d
616 (8th Cir. 2002), in analyzing the threshold issue of the Atrue threat@ analysis, namely:
whether the purported threat was Aintentionally or knowingly communicated to either the
object of the threat or a third person.@ 393 F.3d at 616B17. In Doe, the Eighth Circuit also
listed five non-exhaustive factors relevant to the issue of how a reasonable person would
receive an alleged threat. 306 F.3d at 623. One of those factors was Awhether the person
who made the alleged threat communicated it directly to the object of the threat.@ Id. The
Eighth Circuit also considered the reactions of those who heard the threat, whether the
threat was conditional, whether the speaker had a history of making threats against the
object of the threat, and whether the object of the threat had reason to believe that the
speaker had a violent tendency. Id. We observe that all of these factors weigh in favor of
the conclusion that Bell=s song was not a Atrue threat.@ For example, as explained infra, the
warning in Bell=s song was clearly conditional in nature, and there was no evidence Bell had
violent tendencies or had ever threatened the coaches.
36
No. 12-60264
consider a statement a serious expression of an intent to cause harm: AA
reasonable listener understands that a gangster growling >I=d like to sew your
mouth shut= to a recalcitrant debtor carries a different connotation from the
impression left when a candidate uses those same words during a political
debate. And a reasonable listener knows that the words >I=ll tear your head
off= mean something different when uttered by a professional football player
from when uttered by a serial killer.@ United States v. Jeffries, 692 F.3d 473,
480 (6th Cir. 2012). Moreover, the Supreme Court has cautioned that courts
should be careful to keep in mind the Apublic@ nature of purportedly
threatening speech in assessing whether it falls outside the protections of the
First Amendment. See, e.g., N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.
886, 926B27 (1982) (ASince respondents would impose liability on the basis of a
public addressCwhich predominantly contained highly charged political
rhetoric lying at the core of the First AmendmentCwe approach this suggested
basis of liability with caution.@).
Likewise, in the instant case, the overall context reveals that a
reasonable listener would be able to distinguish genuine threats of
perpetrating school violence, like those in Ponce, from the purely rhetorical use
of violent language contained in the lyrics of an aspiring rap musician who
publicly broadcast his song, rather than privately communicated it, in an effort
to (i) raise awareness of an important issue of public concern, and (ii) attract
the attention of listeners and record labels in furtherance of his musical
ambitions.
Second, the purported Athreats@ contained in the song are conditional in
nature, as demonstrated by both the lyrics themselves and the school officials=
interpretation of them. The language referencing Acapping@ Wildmon is
conditional by its very terms: AMiddle fingers up if you want to cap that nigga@
37
No. 12-60264
(emphasis added). Moreover, one of the Disciplinary Committee members
agreed with Bell that the song=s lyrics regarding putting a pistol down
someone=s mouth conveyed that Aif [the teachers] don=t stop what they=re doing
then a parent kinda is gonna do that, not really him [i.e., Bell].@
Third and finally, the reactions of the listeners themselves undermine
the notion that a reasonable listener would view the song as a threat. For
example, the Facebook screen shot indicates that Bell=s Facebook Afriends@ who
commented on the song did not view it as a threat by Bell against the coaches
but rather as the product of Bell=s artistic aspirations (e.g., AHey, don=t forget
me when you=re famous@ and ALol. . . Mane Im tellin you cuz . . . been tellin you
since we was little . . . keep fuckin with it man you got all the talent in the
world . . .@). Moreover, the Disciplinary Committee could not even conclude
whether Bell=s song constituted a definitive threat, instead finding the issue
Avague,@ and Coach Rainey himself testified that he viewed the song as Ajust a
rap@ rather than an actual threat. Even Coach Wildmon, who testified that
he took the song Aliterally@ and felt Ascared,@ did not indicate whether he
actually feared Bell, rather than the possibility that one of the female students=
family members might harm him in light of the song=s revelations.
As the foregoing demonstrates, the overall factual context reveals that
neither the coaches, nor school officials, could have reasonably interpreted
Bell=s song as a serious expression of an intent to cause harm. Rather, we
conclude that the violent language contained in the lyrics was clearly rhetorical
in nature, and we therefore reject the argument that Bell=s song constituted a
Atrue threat@ of violence. 50
50 Perhaps correctly realizing that the School Board cannot overcome the high hurdle
of showing Bell=s song constituted a Atrue threat,@ the dissent seeks to talismanically invoke
the tragic history of mass school shootings in an effort to shield the School Board=s actions
from any modicum of constitutional scrutiny. We reject the dissent=s overly deferential
38
No. 12-60264
IV.
In conclusion, we do not decide whether the Tinker Asubstantial-
disruption@ test can be applied to a student=s rap song that he composed,
recorded and posted on the Internet while he was off campus during non-school
hours. Rather, we decide only that, even assuming arguendo the School
Board could invoke Tinker in this case, it would not afford the School Board a
defense for its violation of Bell=s First Amendment rights because the evidence
does not support a finding, as would be required by Tinker, that Bell=s song
either substantially disrupted the school=s work or discipline or that the school
approach. Although the history of violence in schools may be a pertinent consideration in
determining whether school officials acted reasonably, school officials cannot simply shirk
constitutional dictates by pointing to a school tragedy each time a student sings, writes, or
otherwise uses violent words or imagery outside of school.
Moreover, while conceding that Bell=s song addresses a matter of public concern, the
dissent does not give due consideration to the consequences on social and political discourse
of reflexively deeming Bell=s song a Atrue threat.@ The genius of the First Amendment is its
implicit recognition that the great diversity of our democracy yields a corresponding diversity
in the creative forms of social and political debate. See, e.g., Brown v. Entertainment
Merchants Ass=n, 131 S. Ct. 2729, 2733 (2011) (AUnder our Constitution, esthetic and moral
judgments about art and literature . . . are for the individual to make, not for the Government
to decree, even with the mandate or approval of a majority.@) (internal quotation and citation
omitted); Cohen v. California, 403 U.S. 15, 25 (1971) (observing that Aone man=s vulgarity is
another=s lyric@). A cartoon can be as powerful as a pamphlet. See Hustler Magazine v.
Falwell, 485 U.S. 46, 53 (1988); accord Brown, 131 S. Ct. at 2733 (ALike the protected books,
plays, and movies that preceded them, video games communicate ideasBand even social
messagesBthrough many familiar literary devices (such as characters, dialogue, plot, and
music) and through features distinctive to the medium (such as the player=s interaction with
the virtual world).@). The most vulgar and hateful of words can be the only ones capable of
conveying one=s ideology. See Snyder, 131 S. Ct. at 1216B17. Within this same tradition,
Bell accomplished his social critique of the coaches= harassment of female students by
including vulgar and violent language in his off-campus rap recording. Compare Watts, 394
U.S. at 708 (AThe language of the political arena, like the language used in labor disputes . .
. is often vituperative, abusive, and inexact.@). While some may prefer a socio-political
landscape lacking such rhetoric, the First Amendment nevertheless protects it, and the
narrow applicability of the Atrue threat@ doctrine ensures that speech on such matters of
public concern, even if vulgar or violent, is not chilled. See id. at 706 (holding that
petitioner=s statement at a public rally that, if drafted and given a rifle, he would shoot the
President was political hyperbole and not a Atrue threat@ and was, therefore, protected by the
First Amendment).
39
No. 12-60264
officials reasonably could have forecasted such a disruption. With respect to
the School Board=s alternative argument, we conclude that Bell=s song did not
Agravely and uniquely threaten violence@ to the school population such to
justify discipline pursuant to this court=s narrow holding in Ponce that student
speech that threatened a Columbine-style attack on a school was not protected
by the First Amendment. We also conclude that Bell=s speech did not
constitute a Atrue threat,@ as evidenced by, inter alia, its public broadcast as a
rap song, its conditional nature, and the reactions of its listeners.
For these reasons, the district court=s judgment is REVERSED IN PART,
and judgment is RENDERED in favor of Taylor Bell against the School Board
on his First Amendment claim. The case is REMANDED, and the district
court is DIRECTED to award Bell nominal damages, court costs, appropriate
attorneys= fees, and an injunction ordering the School Board to expunge all
references to the incident at issue from Bell=s school records. In all other
respects, the judgment of the district court is AFFIRMED IN PART.
40
No. 12-60264
RHESA HAWKINS BARKSDALE, Circuit Judge, concurring in part and
dissenting in part.
The majority’s long-overdue opinion (oral argument was held over two
years ago, on 3 December 2012), reviews cross-motions for summary judgment.
I concur, of course, in the majority’s holding that the substantive-due-process
claim by Taylor Bell’s mother is waived and that qualified immunity precludes
liability against the superintendent and principal in their individual
capacities, leaving at issue only Bell’s First Amendment claim against the
school board. Maj. Opn. at 2 n.1. I must dissent, however, from the
majority’s both vacating the summary judgment for the school board on that
claim and rendering summary judgment for Bell on it. (Assuming arguendo
the school board is not entitled to summary judgment, Bell is not entitled to it
either.) Regarding the First Amendment claim, except for the intentionally
published threats to, and harassment and intimidation of, two teachers, which
the school board found justified disciplinary action against Bell, I will not take
issue with the majority’s categorizing at 30, in note 46, the miniscule balance
of Bell’s incredibly violent, vulgar, and profane rap recording as involving “a
matter of public concern”.
“With the advent of the Internet and in the wake of school shootings at
Columbine, Santee, Newtown and many others, school administrators face the
daunting task of evaluating potential threats of violence and keeping their
students safe without impinging on their constitutional rights.” Wynar v.
Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1064 (9th Cir. 2013). In that regard,
school administrators must be afforded wide latitude in proactively addressing
language that reasonably could be interpreted as a threat, harassment, or
intimidation against members of the school community.
“Experience shows that schools can be places of special danger.” Morse
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No. 12-60264
v. Frederick, 551 U.S. 393, 424 (2007) (Alito, J., concurring). For example, 11
days after oral argument in our court for this appeal on 3 December 2012, a
16-year-old entered Sandy Hook Elementary School, in Newtown, Connecticut,
and shot and killed 20 school children and six staff members, including the
principal, before killing himself. In the two years since the Sandy Hook
shooting, in the United States there have been 93 school shootings (defined as
instances of the discharge of a firearm on campus) and 40 major school
shootings (defined as an incident where the shooter was linked to the school
and at least one person was shot on campus), including the most recent
incidents at Florida State University, where a former student opened fire on
students in the library, and at Marysville-Pilchuck High School outside
Seattle, Washington, where a student killed four fellow students, before killing
himself. Greg Botelho, Faith Karimi, & Nick Valencia, Gunman opens fire in
Florida State University library; 3 wounded, CNN, 21 Nov. 2014, available at
http://www.cnn.com/2014/11/20/us/fsu-incident/; Faith Karimi & Joe Sutton,
4th Victim dies after shooting at high school cafeteria in Washington state,
CNN, 8 Nov. 2014, available at http://www.cnn.com/2014/11/08/us/washington
-school-shooting/index.html; Matt Kreamer, 2 dead, 4 wounded in shooting at
Marysville-Pilchuck High School, The Seattle Times, 24 Oct. 2014, available
at http://blogs.seattletimes.com/today/2014/10/shooting-reported-at-
Marysville-pilchuck-high-school/; School Shootings in America Since Sandy
Hook, We Are Everytown for Gun Safety (3 Dec. 2014),
http://everytown.org/article/schoolshootings/; see also Spinning Statistics on
School Shootings, FactCheck.org (25 June 2014),
http://www.factcheck.org/2014/06/spinning-statistics-on-school-shootings/.
Tragically, this post-oral-argument school-related violence is consistent
with the increasing school-related violence prior to the date of oral argument
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No. 12-60264
here. From 19 February 1997 (the day a 16-year old shot and killed a student
and principal, and injured two others in Bethel, Alaska) to the date the school
board found against Bell on 7 February 2011, there were 171 school shootings
(including those in Pearl, Mississippi, Littleton, Colorado (Columbine), and
Blacksburg, Virginia (Virginia Tech)). Major School Shootings in the United
States Since 1997, Brady Campaign to Prevent Gun Violence (17 Dec. 2012),
http://gunviolence.issuelab.org/resource/major_school_schootings_in_the_Unit
ed_States_since_1997. For example, on 6 February 2011, the day before the
school-board meeting concerning Bell, one student was killed and 11 others
were injured during a shooting at Youngstown State University in Ohio. Id.
As evidence of this disturbing trend of school violence, each State in our
circuit has passed legislation addressing such violence since the Sandy Hook
shooting. See Nathan Koppel, More Texas Schools Allow Armed Employees,
Wall Street Journal, 25 Aug. 2014, available at
http://online.wsj.com/articles/more-texas-schools-allow-armed-employees-
1408986620. Louisiana has passed legislation changing/expanding
emergency preparedness drills; Mississippi and Texas have passed legislation
allowing the addition of school police or security officers; and Texas has also
passed legislation allowing certain personnel to carry firearms on school
grounds, and authorizing state-funded school safety centers. Id. Symptomatic
of how commonplace violence at schools has become, six States “mandate
active shooter drills for schools”, designed to simulate mass shooting
situations, while 24 States “requir[e] general school lockdown or safety
drills”. Dan Frosch, ‘Active Shooter’ Drills Spark Raft of Legal Complaints,
Wall Street Journal, 4 Sept. 2014, available at
http://online.wsj.com/articles/active-shooter-drills-spark-raft-of-legal-
complaints-1409760255.
43
No. 12-60264
Meanwhile, nearly all teenagers use the Internet, with the majority of
them accessing it and social-networking websites through mobile devices.
Amanda Lenhart, Presentation, PewResearch Internet Project, Teens &
Technology: Understanding the Digital Landscape (25 Feb. 2014),
http://www.pewinternet.org/2014/02/25/teens-technology-understanding-the-
digital-landscape/ (explaining 95 percent of teenagers use the Internet and 74
percent of teenagers between 12 and 17 years old are mobile Internet users);
see also Amanda Lenhart, Presentation PewResearch Internet Project, It Ain’t
Heavy, It’s My Smartphone: American Teens & The Infiltration Of Mobility Into
Their Computing Lives (14 June 2012),
http://www.pewinternet.org/2012/06/14/it-aint-heavy-its-my-smartphone-
american-teens-and-the-infiltration-of-mobility-into-their-computing-lives/
(explaining, as of 2012, 80 percent of teenagers used social-networking
websites). Commonly used social-media websites include Facebook (provides
a litany of social services such as “news feed”, personalized “profile” and
instant-messaging), Twitter (allows users to “tweet” statements up to 140
characters, and view others’ “tweets”, in personalized feed), Instagram (allows
users to post, and view others’, pictures, in personalized feed), Snapchat
(allows users to send personalized pictures to others while limiting time users
may view an image), and Pinterest (allows users to post and group pictures or
webpages to their profile). As a result of this “near-constant student access to
social networking sites on and off campus, when offensive and malicious speech
is directed at school officials and disseminated online to the student body, it is
reasonable” for school officials to foresee a substantial disruption to the school
environment. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915,
950 (3d Cir. 2011) (Fisher, J., dissenting).
“[A] page of history is worth a volume of logic”. N.Y. Trust Co. v. Eisner,
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No. 12-60264
256 U.S. 345, 349 (1921) (Holmes, J.); see also Oliver Wendell Holmes, Jr., The
Common Law 5 (1881) (“The life of the law has not been logic: it has been
experience.”). In the light of such use of social media by students and the oft-
repeated school violence before and after the school board’s finding against
Bell, school administrators must remain vigilant as they seek to prevent
violence against students and faculty. As part of this vigilance, they must
take seriously any statements by students resembling threats of violence, as
well as intimidation and harassment by them. Long ago, Justice Jackson
warned: “There is danger that, if the Court does not temper its doctrinaire logic
with a little practical wisdom, it will convert the constitutional Bill of Rights
into a suicide pact”. Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949)
(Jackson, J., dissenting). That warning applies to the result-driven majority
opinion.
Throughout its opinion, the majority attempts to camouflage Bell’s
threats, intimidation, and harassment under the guise of “rap music”. For
this red herring, in classifying Bell as an “aspiring rap musician”, e.g., at 3, 34,
35, and note 21 at 7, the majority hopes characterizations and euphemistic
descriptions will distract from the patent seriousness of Bell’s aggressive and
dangerous comments. Whether Bell was “rapping”, singing country music, or
reading poetry is immaterial; he threatened, intimidated, and harassed two
teachers. At issue is the message, not the medium.
Regrettably, although the majority pays lip service to the increasing
danger in schools, it then sanctions the threats, harassment, and intimidation
in the rap recording, including by turning its back on the deference that must
be accorded school administrators in dealing with such serious matters.
Among other threatening, harassing, and intimidating statements, Bell’s rap
recording includes: “I’m going to hit you with my [R]ueger [sic]”(referring to
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a firearm manufactured by Sturm, Ruger & Co.), “going to get a pistol down
your mouth /Boww” (or “Pow”), and “middle fingers up if you want to cap that
nigga” (“cap” is slang for “shoot”). To hold, as the majority does, that these
and similar statements in the rap recording are protected speech is beyond
comprehension. With due deference, the majority’s holding is absurd. This
cannot be the law.
I.
A correct recitation of the underlying facts, from the summary-judgment
record, is especially important for this appeal. The majority opinion fails in
that regard. For example, it often states that Bell “testified”, without
specifying whether it was during the disciplinary-committee hearing (at which
his informal comments were not under oath) or at the hearing on his request
for a preliminary injunction. E.g., Maj. Opn. at 3, 8, 9, and in note 3 at 3.
Bell posted the rap recording on 5 January 2011 to his public Facebook
page, using what appears to be a representation of a Native American as the
rap recording’s cover image. (The Itawamba Agricultural High School mascot
is a Native American.) A screenshot of Bell’s Facebook profile, taken
approximately 16 hours after he posted the rap recording, shows his profile,
including the rap recording, was open to, and viewable by, the public. In other
words, anyone could access and listen to the rap recording.
Additionally, although the majority claims at 7, in note 21, that there is
no evidence identifying Bell’s Facebook “friends”, or whether any attended his
school, when viewing a person’s profile, Facebook shows ten randomly selected
friends. In this instance, three of those friends were self-identified members
of the Itawamba school district.
The following school day, on 6 January, Coach W. received a text
message from his wife, asking about the rap recording; she had learned about
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it from a friend. The coach listened to the rap recording at school, using a
student’s cellular telephone, which had access to the Internet. The coach
immediately reported the rap recording to the school’s principal, Wiygul, who
then informed McNeece, the school-district superintendent.
On 7 January, Wiygul, McNeece, and Floyd (the school-board attorney)
questioned Bell about the rap recording and its accusations, after which Bell
was sent home for the remainder of the day. Because of snow days, the school
was closed through 13 January.
During his time away from school, and to give far wider dissemination of
his rap recording, Bell created a finalized version of it (adding commentary and
a picture slideshow), and uploaded it to YouTube, again making the rap
recording available to the public.
Bell returned to school on 14 January, but was removed from class
midday by the assistant principal and told he was suspended, pending a
disciplinary-committee hearing (school officials permitted him to remain in the
school commons until the school bus he rode arrived at the end of the day). By
letter that same day to Bell’s mother, the school-district superintendent
(McNeece) informed her a hearing would be held on 19 January to consider
disciplinary action for Bell’s “alleged threatening intimidation and/or
harassment of one or more school teachers”. In the letter, McNeece explained
Bell’s suspension would continue until further notification, and informed his
mother of the possible actions the school board could take.
In an 18 January telephone conversation with the school-board attorney,
Bell’s mother requested Bell’s hearing be continued until 26 January. The
school-board attorney re-set the hearing for the requested date.
The disciplinary-committee hearing was held 26 January. Although
there is no transcript of the hearing, the recording of it is included in the
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summary-judgment record. The information contained in the disciplinary-
committee-hearing recording more than justified the subsequent action taken
by the school board. The disciplinary-committee-hearing recording is the
critical evidence at hand, making it necessary to describe the contained
information in great detail.
The hearing was facilitated by Floyd, the school-board attorney; three
disciplinary-committee members were present, as well as the principal, Bell,
his mother, and their attorney. The school-board attorney began by
addressing the informal nature of the hearing. And, throughout the hearing,
the school-board attorney emphasized the issue before the committee was
whether Bell threatened, harassed, and/or intimidated school personnel and
whether he should be disciplined as a result. The school-board attorney
explained that the allegations against the two coaches would be the subject of
another proceeding. (The majority fails at 10, in note 25, to include this
explanation in its discussion of Bell’s attorney’s attempting, at the
disciplinary-committee hearing, to inject students’ allegations against the
coaches.)
Wiygul, the principal, stated: Coach W. came into his office, explaining
“several kids” were talking about a rap recording Bell had posted on Facebook,
which was derogatory toward him and another coach, and accused them of
inappropriate conduct; the following morning, Bell was brought into a meeting
and asked about his accusations, but would not talk about them; at that time,
school officials decided it was best to send Bell home for the remainder of the
day; and Bell came to school the next school day (which, due to snow, was the
following Friday), but the assistant principal told him to leave as he was
suspended pending a hearing.
After Wiygul spoke, the YouTube version of the rap recording was played
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at the hearing.
Bell and his mother then stated that he was not told of the suspension
until Friday (14 January), when the assistant principal saw Bell and contacted
McNeece, the school-district superintendent, asking her what to do about Bell’s
presence. According to them, McNeece first instructed the assistant
principal that Bell could stay, but then instructed him to tell Bell to leave and
not come back.
Bell’s attorney then began asking who decided on the temporary
suspension and the reason for that decision. Floyd, the school-board attorney,
redirected the discussion, explaining the purpose of the hearing was to
determine whether the suspension should be upheld, and whether the
allegations that Bell threatened, harassed, and intimidated teachers were
correct.
One of the committee members asked Bell if he had spoken to anyone at
the school about the accusations he made in the rap recording. Bell explained
he did not speak to anyone about those accusations, but instead made the rap
recording because he knew people were “gonna listen to it, somebody’s gonna
listen to it”. (Several times during the hearing Bell acknowledged he posted
the rap recording to Facebook because he knew it would be viewed and heard
by students. Moreover, he explained that at least 2,000 people contacted him
about the rap recording in response to the Facebook and YouTube postings.)
Although Bell’s attorney tried to begin discussing the misconduct of the
coaches alleged in the rap recording, the school-board attorney again
redirected the conversation to the purpose of the hearing, which was, as she
explained, to discuss the “comments made . . . the ‘you’ve f—ed with the
wrong one / going to get a pistol down your mouth / POW’ [because] those are
threats to a teacher”.
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No. 12-60264
Bell responded by stating, “Well that ain’t really what I said”, and then
provided what he described as the “original copy”. (It is unclear from the
disciplinary-committee-hearing recording, or other parts of the summary-
judgment record, which copy of the rap item Bell provided. There are three
written versions of the rap item in the record. The first was submitted as an
exhibit by the school board with its response in opposition to Bell’s motion for
a preliminary injunction and used the word “ruler”, instead of “rueger [sic]”,
following “I’m going to hit you with my. . .”. The other two versions were
exhibits introduced at the preliminary-injunction hearing. The second
version was submitted by Bell and used the word “rueger [sic]”. The third
version is hand-written excerpts, submitted by the school board. During the
preliminary-injunction hearing, the school board stipulated to the accuracy of
Bell’s transcription. Finally, the “rueger [sic]” and “ruler” versions were both
re-submitted as exhibits with the cross-motions for summary judgment. The
“rueger [sic]” version was submitted with Bell’s motion for summary judgment
as an exhibit, and the “ruler” version was submitted with the school-board’s
motion.)
Bell explained he did not mean he was going to shoot anyone, but that
he was only “foreshadowing something that might happen”. Nevertheless,
Bell acknowledged that “certain statements” were made to his mother that
“‘put a pistol down your mouth’[,] that is a direct threat”. Floyd, the school-
board attorney, clarified for the record, and the mother agreed, that no one at
the hearing made those statements to Bell’s mother. Rather, those
statements were made “outside the school setting”.
One of the committee members asked Bell why he had posted a new
version of the rap recording on YouTube after school officials had approached
him about his posting the rap recording on Facebook. Bell gave a few (and
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No. 12-60264
somewhat conflicting) explanations: the version he posted on Facebook was a
raw copy, so he wanted a finalized version posted on YouTube; the Facebook
version was posted for his friends and “people locally” to hear, whereas the
YouTube version was for music labels to hear; and he posted the YouTube
version with a slideshow of pictures to help better explain what the rap
recording was about because people had been asking him about it (the
Facebook version only included a brief explanation of the backstory in the
caption to the rap recording).
Near the end of the disciplinary-committee hearing, Bell explained again
that: he put the rap recording on Facebook and YouTube knowing it was open
to public viewing; part of his motivation was to “increase awareness of the
situation”; and, although he did not think the coaches would hear the rap
recording and did not intend the rap recording to be a threat, he knew students
would listen to the rap recording, later stating “students all have Facebook”.
Throughout the hearing, the school-board attorney and committee
members were very considerate toward Bell and counseled him on what
appropriate action he could have taken. (Amazingly, one member even told
Bell that he “really can rap” and explained there would have been no problem
with the rap recording or its vulgar language if it had not included threats
against school employees. The majority claims at 12, in note 29, that this
committee member did not characterize Bell’s statements as “threatening”,
and only admonished Bell for his word choice, “thus providing Bell poetic or
artistic advice”. Given that the disciplinary committee found Bell harassed
and intimidated the coaches, while finding it was vague whether he threatened
them, this distinction by the majority is wide of the mark. It is consistent with
the majority’s going to any extreme to avoid the obvious: that Bell threatened,
intimidated, and harassed two teachers.) At the close of the disciplinary-
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committee hearing, the school-board attorney emphasized, and Bell’s attorney
did not contest, that by posting the rap recording to an open Facebook page,
Bell knew anyone could hear the rap recording.
By 27 January letter to Bell’s mother, the school-board attorney advised:
the disciplinary committee had determined “the issue of whether or not lyrics
published by Taylor Bell constituted threats to school district teachers was
vague”, but that the publication of the rap recording constituted harassment
and intimidation of two teachers, in violation of school-board policy and state
law; as a result, the disciplinary committee recommended Bell’s seven-day
suspension be upheld and that he be placed in the county’s alternative school
for the remainder of the nine-week grading period; Bell would not be “allowed
to attend any school functions and [would] be subject to all rules imposed by
the Alternative School”; and “[he would] be given time to make up any work
missed while suspended or otherwise receive a 0, pursuant to Board policy”.
By 1 February letter, the school-board attorney confirmed to Bell’s
attorney the content of their 31 January conversation, during which Bell’s
attorney had stated: Bell wished to appeal the disciplinary-committee’s
recommendation; and Bell and his mother were expected to appear before the
board on 7 February without counsel, because their attorney was unable to
attend due to a scheduling conflict. The letter advised that, despite the
recommendation that Bell begin alternative school on 27 January, he had not
attended any classes and explained these absences would add to the length of
time before he would be allowed to return to a regular classroom.
The only document in the record from the 7 February school-board
meeting is the minutes of that meeting. They state: “Chairman Tony
Wallace entertained a motion by Clara Brown to accept the discipline
recommendation of the discipline committee regarding student with MSIS
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#000252815 (I.A.H.S.) and finding that this student threatened, harassed and
intimidated school employees. Wes Pitts seconded the motion. Motion
Carried Unanimously.” (Subsequently, at the 10 March preliminary-injunction
hearing, the school-board attorney testified that, at the 7 February school-
board meeting, the board listened to a recitation of Bell’s rap item.
The majority at 13, note 32, states the “record is unclear regarding the
exact evidence presented to the School Board”, but that the “Board’s decision
apparently was based on the same audio-recording of Bell’s song heard by the
Disciplinary Committee”. The record is not “unclear”. During the
preliminary injunction hearing, the school-district’s attorney asked McNeece,
the school-district superintendent, “[T]he two lyrics that I’ve read into the
record and these witnesses have read into the record, were presented to the
school board, correct?”, to which McNeece replied, “That’s correct.” Portions
of the rap item read into the record include: “[G]oing to get a pistol down your
mouth” and “Middle fingers up, if you want to cap that nigga”. Therefore, it
is not unclear what the school board considered. Furthermore, at the
beginning of the preliminary-injunction hearing, Bell’s attorney submitted as
evidence the transcription of the rap item. As discussed supra, at that
hearing, the school board accepted this transcription as “the correct version”.)
By 11 February letter to Bell’s mother, the school-board attorney
explained that, contrary to the earlier-described lesser findings of the
disciplinary committee (Bell had harassed and intimidated two teachers; but,
whether he had made a threat was “vague”), the school board had determined:
“Bell did threaten, harass and intimidate school employees in violation of
School Board policy and Mississippi State Law”. (According to the written
school policy, “[h]arassment, intimidation, or threatening other students
and/or teachers” constitutes a “severe disruption”.) Notwithstanding the
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No. 12-60264
school board’s determining Bell had engaged in conduct even more serious than
that found by the disciplinary committee, the school board upheld the
recommendations of the disciplinary committee.
On 24 February, Bell and his mother filed this action, claiming the school
board, superintendent, and principal, inter alia, violated Bell’s First
Amendment rights. Plaintiffs moved for a preliminary injunction on 2 March,
seeking Bell’s immediate reinstatement to his high school, including the
reinstatement of “all privileges to which he was and may be entitled as if no
disciplinary action had been imposed”, and that all references to this incident
be expunged from his school records.
For the earlier-referenced 10 March hearing on the preliminary-
injunction request, Bell included four affidavits from students at his school,
containing allegations against the coaches. (The affidavits were not considered
by the district court during the preliminary-injunction hearing.)
At the hearing, the superintendent testified that she had attended the
school-board meeting at which Bell’s rap item was presented; and that there
was a foreseeable danger of substantial disruption at the school as a result of
the rap recording.
Both coaches accused and threatened in the rap recording testified at the
preliminary-injunction hearing; each explained the rap recording affected their
work at the school. Coach R. testified that, subsequent to the publication of
the rap recording, students began spending more time in the gym, despite
teachers telling them to remain in classrooms; and Coach W. testified that he
interpreted the words in the rap recording literally and was frightened. (The
majority at 24–25, in note 41, disputes the nature of the testimony by claiming
the only evidence of a substantial disruption was the coaches’ alteration of
their teaching styles “to avoid any appearance of impropriety”, and, at 36,
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No. 12-60264
seeks to diminish the importance of the testimony by stating Coach W. “did not
indicate whether he actually feared Bell, rather than the possibility that one
of the female students’ family members might harm him in light of the song’s
revelations”. This is incorrect. For example, as the majority admits at 14–
15, Coach W. testified that, in addition to being frightened by the rap recording,
he did not allow the members of the school basketball team he coached to leave
after games until he was in his vehicle. Moreover, Coach W.’s testimony
provides valuable insight into how an objectively reasonable person would
interpret the threats in the recording.) At the hearing, the district court
refused to entertain questioning on whether the allegations against the two
coaches were true. After finding Bell’s last day of alternative school would be
the next day, 11 March, the district court ruled the issue was moot and denied
the preliminary injunction.
On cross-motions for summary judgment, the district court denied Bell’s
motion and granted defendants’ (the school board, superintendent, and
principal). In doing so, it ruled the rap recording constituted “harassment and
intimidation of teachers and possible threats against teachers and threatened,
harassed, and intimidated school employees”. Bell v. Itawamba Cnty. Sch.
Bd., No. 1-11-CV-56, order at 9 (N.D. Miss. 15 A.K. Marsh. 2012). The court also held
the rap recording “in fact caused a material and/or substantial disruption at
school and . . . it was reasonably foreseeable to school officials the song would
cause such a disruption”. Id. Moreover, the court held: (1) the individual
defendants were entitled to qualified immunity; and (2) Bell’s mother could not
show a violation of her Fourteenth Amendment rights. Id. at 12.
II.
As discussed above, the majority affirms these last two holdings. I
dissent only from its (1) vacating the summary judgment granted the school
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No. 12-60264
board on Bell’s First Amendment claim and (2) rendering judgment for him on
that claim. The judgment awarded the school board on the First Amendment
claim should be affirmed. In the alternative, that claim should be remanded
to district court for trial.
A summary judgment is reviewed de novo, applying the same standard
as did the district court. E.g., Feist v. La., Dep’t of Justice, Office of the Att’y
Gen., 730 F.3d 450, 452 (5th Cir. 2013) (citation omitted). Summary judgment
is proper when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law”. Fed. R. Civ. P. 56(a). “A
genuine dispute of fact exists when evidence is sufficient for a reasonable jury
to return a verdict for the non-moving party, and a fact is material if it might
affect the outcome of the suit.” Willis v. Cleco Corp., 749 F.3d 314, 317 (5th
Cir. 2014) (internal citation and quotation marks omitted) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In determining whether to grant summary judgment, the court, in its de
novo review, views the evidence in the light most favorable to the non-movant.
E.g., Dameware Dev., LLC v. Am. Gen. Life Ins. Co., 688 F.3d 203, 206–07 (5th
Cir. 2012) (citation omitted). Consistent with that, when, as here, cross-
motions for summary judgment are in play, “we review [de novo] each party’s
motion independently, viewing the evidence and inferences in the light most
favorable to the nonmoving party”. Cooley v. Hous. Auth. of Slidell, 747 F.3d
295, 298 (5th Cir. 2014) (internal quotation marks omitted) (quoting Ford
Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001)).
“Although on summary judgment the record is reviewed de novo, this court . . .
will not consider evidence . . . not presented to the district court”, but “we may
affirm the . . . decision on any basis presented to the district court”. Am.
Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896 (5th Cir. 2013)
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No. 12-60264
(citations and internal quotation marks omitted).
The summary-judgment record at hand includes, inter alia: (1)
affidavits of four students regarding the coaches’ supposed conduct; (2)
screenshots of Bell’s Facebook page; (3) a transcription of the rap item
submitted by the school board (“ruler” version); (4) a transcription of the rap
item submitted by Bell (“rueger [sic]” version); (5) the letter from the
superintendent to Bell’s mother informing the Bells of a hearing before the
disciplinary committee; (6) the digital recording of the rap recording; (7) the
first screenshot of Bell’s Facebook “wall”; (8) the second screenshot of Bell’s
Facebook “wall”; (9) the disciplinary-committee’s findings; (10) the
disciplinary-committee-hearing minutes and the all-important CD recording of
that hearing; (11) the school-board attorney’s letter to Bell’s mother informing
her of the disciplinary-committee’s findings; (12) the school-board-hearing
minutes; (13) the school-district discipline policy; (14) the school-board
attorney’s letter to Bell’s mother informing her of the school-board’s
determination; and (15) the transcript of the preliminary-injunction hearing.
For obvious reasons, in analyzing school-board decisions, deference must
be accorded the school-board’s determinations. Callahan v. Price, 505 F.2d
83, 87 (5th Cir. 1974); see also Wood v. Strickland, 420 U.S. 308, 326 (1975) (“It
is not the role of the federal courts to set aside decisions of school
administrators which the court may view as lacking a basis in wisdom or
compassion.”), overruled on other grounds, Harlow v. Fitzgerald, 457 U.S. 800
(1982); Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960, 967 (5th Cir. 1972)
(citing cases) (“That courts should not interfere with the day-to-day operations
of schools is a platitudinous but eminently sound maxim which this court has
reaffirmed on many occasions.”).
A.
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It is well-established that students do not forfeit their First Amendment
rights to freedom of speech and expression when they enter school. Tinker v.
Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). The First
Amendment does not, however, guarantee students absolute rights to such
freedoms. As Justice Oliver Wendell Holmes, Jr., wrote nearly a century ago:
“[T]he character of every act depends upon the circumstances in which it is
done. The most stringent protection of free speech would not protect a man
in falsely shouting fire in a theatre and causing a panic.” Schenck v. United
States, 249 U.S. 47, 52 (1919) (citation omitted). Bell’s rap recording, through
which the school board found he threatened, intimidated, and harassed two
members of the faculty at his high school, was intentionally disseminated
through Facebook and YouTube. Accordingly, on two bases (true threat and
substantial disruption), the threatening, harassing, and intimidating portions
of Bell’s incredibly violent, vulgar, and profane rap recording do not enjoy the
protection of the First Amendment.
1.
The school-board’s decision should be upheld under the “true threat”
analysis originally introduced in Watts v. United States, 394 U.S. 705 (1969).
Although the First Amendment generally protects speech, “the government
can proscribe a true threat of violence without offending the First
Amendment”. Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 616 (5th Cir.
2004). “[A] prohibition on true threats ‘protect[s] individuals from the fear of
violence’ and ‘from the disruption that fear engenders,’ in addition to protecting
people ‘from the possibility that the threatened violence will occur’”. Virginia
v. Black, 538 U.S. 343, 360 (2003) (alteration in original) (quoting R.A.V. v.
City of St. Paul, Minn., 505 U.S. 377, 388 (1992)). “Speech is a true threat
and therefore unprotected if an objectively reasonable person would interpret
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the speech as a serious expression of an intent to cause a present or future
harm.” Porter, 393 F.3d at 616 (citation and internal quotation marks omitted).
Moreover, intimidation is a form of true threat. See Black, 538 U.S. at 360
(“Intimidation in the constitutionally proscribable sense of the word is a type
of true threat, where a speaker directs a threat to a person or group of persons
with the intent of placing the victim in fear of bodily harm or death.”).
The true-threat analysis was further explained in Doe v. Pulaski County
Special School District, which provided a two-step test: (1) whether the
speaker “intentionally or knowingly communicated the statement in question
to someone” including “a third party”; and (2) “whether a reasonable person
would interpret the purported threat as a serious expression of an intent to
cause a present or future harm”. 306 F.3d 616, 622, 624 (8th Cir. 2002) (en
banc). Our court affirmatively cited Doe as an “illustrative application” of the
true-threat test in the context of school speech. Porter, 393 F.3d at 616–18
(finding off-campus speech at issue not intentionally communicated to anyone).
In our de novo review of the cross-motions for summary judgment, the question
then becomes whether, pursuant to the standard set by Rule 56(a), each prong
of the two-step test is satisfied.
a.
Regarding the first step, and contrary to the position taken by the
majority, there is no genuine dispute that Bell intentionally and knowingly
communicated the rap recording in a way that it would reach the school. Bell
first posted the rap recording to his open Facebook account, accessible to
anyone with a Facebook account, and not limited to his Facebook 1,380-
member “friend” group. At the disciplinary-committee hearing, he stated he
knew “students and stuff would hear it because . . . students all have
Facebook”. And, Bell posted a revised version of the rap recording to
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YouTube, which offers unlimited access. When asked at the disciplinary-
committee hearing why he did not discuss his allegations with the school
principal, he stated that such conversations would have no impact, but “[i]f I
do the song, they’re going to listen to it”. It is undisputed that Bell
intentionally targeted the rap recording to students and administrators alike,
hoping the latter would take action after hearing the recording.
b.
The next question in this two-step analysis is whether a reasonable
person would view the threatening speech as “an intent to cause a present or
future threat”. Doe, 306 F.3d at 622. This is an issue of law. See generally
id. at 616–26 (rendering judgment as a matter of law, holding as objectively
reasonable the determination that the threat constituted a “true threat”).
As stated, there can be no question that an objectively reasonable person
would interpret the rap recording as a true threat. When a student
intentionally and publicly states that an educator will be “capped” (shot), have
a pistol put down his mouth, and hit with a pistol, an objectively reasonable
school administrator may interpret these words to constitute a true threat.
“School administrators must be permitted to react quickly and decisively to
address a threat of physical violence . . . without worrying that they will have
to face years of litigation second-guessing their judgment as to whether the
threat posed a real risk of substantial disturbance.” Ponce v. Socorro Indep.
Sch. Dist., 508 F.3d 765, 772 (5th Cir. 2007).
Supporting how an objectively reasonable person would view the
comments, Coach W. testified at the preliminary-injunction hearing that he
took the rap recording “literally”, felt “scared”, reported the rap recording to
the principal immediately upon hearing it, and took extra safety measures
after hearing the rap recording. Consistent with that testimony, Bell’s expert
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witness in the field of rapping testified at the preliminary-injunction hearing
that, if a rap item names an individual directly preceding a threat, “it would
definitely be cause for conversation with the [rapper], absolutely”. And, as
discussed earlier, Bell’s mother even received comments from community
members (outside the school setting) who had heard the rap recording and
believed the language about putting a pistol down someone’s mouth would
constitute a direct threat. After listening to the statements in the rap
recording, the school board determined unanimously “that [Bell] did threaten,
harass, and intimidate school employees”. Therefore, the rap recording was
understood, both subjectively by one of the coaches and objectively by the
school board, to be a threat.
Bell implores this court to interpret his threats as simply artistic
expression. The majority, likewise, contends at 33 and 35 that, because Bell’s
threats were embedded in some protected speech, his threats were at worst
hyperbolic or metaphoric and that such speech does not constitute a true
threat. But the nature of the speech and Bell’s own admissions belie this
contention. As discussed supra, in the written version of the rap recording
relied upon by Bell, he threatened, inter alia, to “hit [a coach] with my rueger
[sic]”, referring, as noted supra, to the firearms manufacturer Sturm, Ruger &
Co. (Emphasis added.) In the YouTube version, Bell also stated he was
writing about “real-life experience”. By his own admission, then, not all of the
rap recording was meant to be rhetorical; instead, Bell urges only the portions
involving threats, harassment, and intimidation fit that category.
Regardless, under the true-threat analysis, whether Bell intended the
rap recording to be taken as a threat is immaterial. Porter, 393 F.3d at 616.
The same is true for whether he was capable of carrying out the threat. Id. at
616 n.25 (discussing Doe’s instruction to disregard subjective ability to carry
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out threat). The school board determined unanimously that the rap recording
threatened, harassed, and intimidated the coaches. Accordingly, Bell was
suspended for Offense 16 (threatening, harassing, and intimidating) of the
severe-disruptions section of the school-district disciplinary policy, and in
violation of state law. (Two potential state-law examples, among many, are
Mississippi Code Annotated § 37-11-21 (making it a misdemeanor to abuse
teachers) and § 97-45-17 (making it a felony to post messages through
electronic media for the purpose of causing an injury to another).)
Incredibly, the majority seems to believe that making such threats in a
rap recording obscures the fact that Bell’s words could reasonably be
considered to place two members of the school’s faculty in danger, and that
taking disciplinary action against him for such conduct violates his First
Amendment rights. But, again, “rapping” has nothing to do with this; a
student who speaks the words Bell spoke, regardless of the manner of speech,
threatens teachers. The majority at 10–11, and in note 27, urges that, by
Bell’s stating he was writing about real-life, he was referring to his personal
experiences at school regarding the allegations about the coaches, and that his
“real-life” statement should not be construed to imply a serious intent to carry
out the threats in his recording. Again, the public-school system “relies
necessarily upon the discretion and judgment of school administrators and
school board members”. Wood, 420 U.S. at 326. Therefore, as noted supra,
“[i]t is not the role of the federal courts to set aside decisions of school
administrators which the court may view as lacking a basis in wisdom or
compassion”. Id.; see also Morse, 551 U.S. at 425 (Alito, J., concurring) (“[D]ue
to the special features of the school environment, school officials must have
greater authority to intervene before speech leads to violence”.).
The majority at 34, in note 49, emphasizes that, based on numerous
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factors such as the claimed indirect and allegedly conditional nature of the
threat, and the claimed lack of evidence demonstrating a violent
predisposition, Bell’s speech could not have been considered a true threat as a
matter of law. The question is not which interpretation is more reasonable;
rather, it is whether an objectively reasonable person could interpret the
speech as a true threat. (Along that line, and as the summary-judgment
evidence demonstrates, Coach W., the school board, and other members in the
community who contacted Bell’s mother understood the speech to be a threat.)
The majority at 37, in note 50, accuses this dissent of failing to give “due
consideration to the consequences on social and political discourse” by this
dissent’s labeling Bell’s speech a “true threat”. The majority equates Bell’s
threats to other forms of pure political speech and, relying on the facts of Watts,
claims Bell’s speech could not have reasonably been interpreted as a true
threat. (At 33–34, in an absurd metaphor, the majority claims that no
reasonable person would conclude performers murdered, or intended to
murder, the characters in their well-known songs based on their lyrics.
Needless to say, those songs involved fictional characters, not real-life
educators during an extremely tragic period of school violence in this Nation’s
history. This comparison by the majority conveys an attitude that not only
ignores this tragic period but also reflects an almost callous indifference
toward it.)
Further, the majority glosses over the stark differences between this case
and Watts. In Watts, at a Vietnam War protest rally, the speaker made, for
effect, hyperbolic “threats” against the President, stating, “If they ever make
me carry a rifle the first man I want to get in my sights is L.B.J.” 394 U.S. at
706. Here, unlike in Watts, and according to his rap recording, Bell knew
these coaches, and interacted with, and had access to, them as a student.
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Additionally, Bell did not speak abstractly; rather, he advocated their being
killed with a specific brand of gun, and in a specific way. Bell’s access to the
coaches, and the specificity with which he threatened, intimidated, and
harassed them, mandate an outcome different from that reached by the
majority. As discussed, the First Amendment must give way in the face of
speech reasonably interpreted as imminent threats of danger.
Finally, this court should be even more reluctant to overrule the
judgment of school officials in the light of the above-described, widespread gun
violence throughout our Nation. Combining Bell’s intentional communication
of the rap recording toward students and administrators with the school
board’s objective determination that Bell threatened, harassed, and
intimidated two teachers, there is no genuine dispute that Bell’s threats satisfy
the true-threat test and, therefore, are unprotected speech.
2.
In the alternative, and pursuant to the Tinker “substantial-disruption”
test, the school-board’s decision did not violate Bell’s First Amendment rights.
In general, our court applies the Tinker analysis to “school regulations directed
at specific student viewpoints”. Porter, 393 F.3d at 615; see also Wynar, 728
F.3d at 1069 (“[W]hen faced with an identifiable threat of school violence,
schools may take disciplinary action in response to off-campus speech that
meets the requirements of Tinker.”); Wisniewski v. Bd. of Educ. of the
Weedsport Cent. Sch. Dist., 494 F.3d 34, 38 (2d Cir. 2007); Boim v. Fulton Cnty.
Sch. Dist., 494 F.3d 978, 982–83 (11th Cir. 2007) (analyzing threats of violence
to individual teachers under Tinker). Tinker allows a school board to
discipline a student for speech that either causes a substantial disruption or is
reasonably forecast to cause one. 393 U.S. at 514. In that regard, as
discussed, judicial review is necessarily deferential: “School administrators
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must be permitted to react quickly and decisively to address a threat of
physical violence . . . without worrying that they will have to face years of
litigation second-guessing their judgment as to whether the threat posed a real
risk of substantial disturbance”. Ponce, 508 F.3d at 772.
The majority contends the rap recording is “off-campus” speech, noting
throughout its recitation of the facts that, inter alia, Bell composed, recorded,
and uploaded the recording off-campus. Even assuming the “on-campus/off-
campus” distinction remains relevant today (it does not, as discussed infra),
Bell’s intent for the speech to reach members of the community (admitted by
Bell at the disciplinary-committee hearing and recognized by the majority at
4), evinced by his posting the recording publicly to Facebook and YouTube,
makes Bell’s speech the functional equivalent of on-campus speech. Treating
it otherwise is a classic, and forbidden, elevation of form over substance.
Notwithstanding its assuming the Tinker test applies in this instance,
the majority claims at 22–23, in notes 37 and 38, that our precedent only leaves
open the possibility of applying Tinker to off-campus speech. But, contrary to
the majority’s understanding, this is not an open issue: our court has applied
Tinker to off-campus speech when, as in this instance, the speech reached the
school. In a post-Tinker decision, Sullivan v. Houston Independent School
District, our court held that, where a student sold vulgar newspapers off-
campus, defendant’s “conduct . . . outweigh[ed] his claim of First Amendment
protection”. 475 F.2d 1071, 1075 (5th Cir. 1973) (“This case arises from the
unauthorized distribution of an underground newspaper near a high school
campus, and presents the now-familiar clash between claims of First
Amendment protection on the one hand and the interests of school boards in
maintaining an atmosphere in the public schools conducive to learning, on the
other.” (emphasis added)). Our court reasoned: “In the years since Tinker
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was decided courts have refused to accord constitutional protection to the
actions of students who blatantly and deliberately flout school regulations and
defy school authorities”, proceeding to cite numerous cases applying Tinker to
similar speech. Id. at 1076. Although the court was careful to emphasize the
reasonable responses of the school and the unhelpful conduct by defendant in
the face of such responses, the court also emphasized defendant’s “conduct
[could] hardly be characterized as the pristine, passive acts of protest ‘akin to
pure speech’ involved in Tinker”. Id. (citation omitted).
Likewise, the contrast here could not be greater. Bell’s rap recording is
so far removed from the armbands worn in Tinker, protesting the war in
Vietnam, that his seeking protection under the First Amendment, based on the
test in Tinker, borders on being frivolous. Consistent with Justice Black’s
warning in Tinker, the majority’s allowing Bell to threaten, intimidate, and
harass two teachers, by holding the comments are protected speech, signals a
“revolutionary era of permissiveness in this country fostered by the judiciary”.
Tinker, 393 U.S. at 518 (Black, J., dissenting).
Further, our court’s decision in 2004 in Porter supports this conclusion.
The Porter court, in noting other circuits’ application of Tinker to off-campus
activities, interpreted Sullivan as applying Tinker to off-campus speech. 393
F.3d at 615 n.22, 619 n.40 (stating “a number of courts have applied the test in
Tinker when analyzing off-campus speech brought onto the school campus”,
citing Sullivan).
The majority at 23, in note 39, accuses this dissent of “patent[ly]
misreading” Sullivan and Porter. In a footnote devoid of any relevant legal
analysis, the majority not only intentionally ignores Sullivan’s reliance on
Tinker in reaching its conclusion, but implies the court made an ad hoc
decision. By determining the school’s prior-approval regulation was
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constitutional, the Sullivan court concluded that Tinker applies to off-campus
speech; the court could not have reached its conclusion without applying Tinker
to the off-campus speech. 475 F.2d at 1076–77. The majority’s assertions
that our court has not previously applied Tinker to off-campus speech is an
egregious misrepresentation of our precedent.
Furthermore, the majority at 27–30 erroneously reads Ponce as limiting
the application of Tinker in the school context to Columbine-like situations.
Ponce is only one of our court’s decisions applying Tinker. The distinction
espoused by the majority ignores the paramount consideration that any threat,
harassment, and intimidation of a teacher in a school environment must be
taken seriously. Limiting an administrator’s ability to act on threats in only
Columbine-like, mass-shooting circumstances is a recipe for disaster.
But, even assuming our court has not previously applied Tinker to off-
campus speech, in the light of the facts underlying this appeal, technological
developments, as discussed supra, have rendered the distinction obsolete.
The pervasive and omnipresent nature of the Internet, in many respects, has
obfuscated the “on-campus/off-campus” distinction read into Tinker by some
courts. Accord Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d
205, 220–21 (3d Cir. 2011) (Jordan, J., concurring) (“For better or worse,
wireless internet access, smart phones, tablet computers, [and] social
networking . . . give an omnipresence to speech that makes any effort to trace
First Amendment boundaries along the physical boundaries of a school campus
a recipe for serious problems in our public schools.”). With students having
instant access to the Internet anywhere, drawing such an arbitrary distinction
both tortures logic and ignores history.
Skirting the issue, the majority at 22–23, in note 37, advocates that,
despite rapidly changing technology, school administrators are powerless to
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act absent specific Supreme Court guidance. Once again, this flies in the face
of the absolute necessity for school officials to act promptly to protect their
students and teachers against threats, harassment, and intimidation. To
keep pace with technological developments, “speech” made over the Internet
(whether through an on-campus or off-campus computer) that is intentionally
directed at the school cannot be ignored based solely on the original source.
The majority disagrees, citing Morse, 551 U.S. at 424 (Alito, J., concurring), for
the proposition that “[i]t is a dangerous fiction to pretend that parents simply
delegate their authority–including their authority to determine what their
children may say and hear–to public school authorities”, and Shanley, 462 F.2d
at 964, for the proposition that a school board’s unreasonable
“assumption of authority is an unconstitutional usurpation of the First
Amendment”. Obviously, these general principles do not conflict with the
issue at hand.
Here, Bell targeted his rap recording at the school by posting it on
Facebook and YouTube, admittedly knowing students, and admittedly hoping
administrators, would listen to it. The majority states at 25 that the school’s
prohibition of student cell phones on-campus made it unlikely the recording
would be heard on-campus. This assertion is not supported by the summary-
judgment record. For example, in one instance, the rap recording reached the
school through a student cell phone. Although Bell stated at the disciplinary-
committee hearing that he never encouraged anyone at school to listen to the
rap recording, he also stated he knew students would listen to it, and that part
of his motivation was to “increase awareness of the situation”. Therefore,
Tinker applies. The majority’s merely assuming that it does apply detracts
from the very important considerations at play in this appeal.
Under Tinker, “school officials may regulate student speech when they
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can demonstrate that such speech would substantially interfere with the work
of the school or impinge upon the rights of other students”. Porter, 393 F.3d
at 615 (citation and quotation marks omitted). This standard can be satisfied
by either showing a disruption has occurred, or by showing “demonstrable
factors that would give rise to any reasonable forecast by the school
administration of ‘substantial and material’ disruption”. Shanley, 462 F.2d at
974 (citation omitted).
Taking the school board’s decision into account, and the deference we
must accord it, the issue to be decided is whether a genuine dispute of material
fact exists for whether the school board acted reasonably in finding Bell’s rap
recording constituted an ongoing, or reasonably foreseeable, substantial
disruption. Because the school district’s written policy embraces the Tinker
analysis, this question boils down to whether the school board acted reasonably
in determining the rap recording was a substantial disruption because it
threatened, harassed, and intimidated two teachers. There is no genuine
dispute of material fact; the school board acted reasonably.
The school-district’s Discipline – Administrative Policy lists the offense
“Harassment, intimidation, or threatening other students and/or teachers” as
a “severe disruption”. That policy establishes conduct that the school board
considers sufficient to satisfy Tinker’s substantial-disruption test. Along that
line, the superintendent testified at the preliminary-injunction hearing that
her initial decision to suspend Bell stemmed from her belief the rap recording
constituted a danger of a substantial disruption at the school. In that regard,
threats against, and harassment and intimidation of, teachers are inherently
disruptive. Finally, as Bell admitted, and the majority recognizes at 11, even
assuming arguendo Bell’s speech was not an imminent threat, the speech
reflected the possibility of future violence by others. This, alone, resolves the
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issue of whether it was reasonably foreseeable to disrupt the school.
Relying on language in Shanley stating school boards cannot rely on ipse
dixit to demonstrate material and substantial interference with school
discipline, the majority makes several logical missteps. It asserts at 23 that
this dissent’s Tinker analysis relies too heavily on the school board’s
interpretation that “threatening, intimidating and harassing” speech
constitutes a “severe disruption”. Again, regarding teachers, what else could
such speech constitute? Under the majority’s understanding of Tinker, a
student could say anything so long as he set it to melody or rhyme. Once
again, the majority refuses to acknowledge reality.
As the majority notes at 26–27, Shanley also states: “Tinker requires
that presumably protected conduct by high school students cannot be
prohibited by the school unless there are ‘facts which might reasonably have
led school authorities to forecast substantial disruption of or material
interference with school activities . . . .’” 462 F.2d at 970 (citing Tinker, 393
U.S. at 514). As stated, threats against, and intimidation and harassment of,
teachers by their very nature reasonably “forecast substantial disruption”,
regardless of whether an actual disruption occurs. Finally, the majority
intentionally limits its discussion to the “threatening” aspects of Bell’s speech,
ignoring its “intimidating” and “harassing” aspects. Perhaps it does so
because the broader terms of “intimidation” and “harassment” necessarily
require less strenuous proof. In short, the majority confuses ipse dixit with
reality.
Further examination of the rap recording demonstrates this. In
addition to the above-discussed threats, intimidation, and harassment in the
recording, Bell, for example, refers to the teachers as “perverts”. He even
derides the size of the breasts of the wife of one of the teachers (“his wife ain’t
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got no titties”). Those harassing comments alone forecast a substantial
disruption to school discipline.
The majority at 26, in note 43, claims the school board’s disciplinary
policy embraces the majority’s contention that the school may only discipline a
student for speech originating physically on-campus because other listed
“offenses” relate to on-campus conduct. This assertion is factually and
logically incorrect. First, in addition to activities that commonly occur on-
campus, the policy lists several prohibited “off-campus” activities, e.g.,
behavior on a school bus, which likely occurs off school grounds. Second,
under this rationale, Bell would be immune from disciplinary action were he
to present the rap recording, with its extensive threatening, harassing, and
intimidating portions, on television, over the radio, or in a newspaper. As
Sullivan makes clear, speech conveyed through the latter media may be
restricted. E.g., 475 F.2d at 1076. Finally, this understanding ignores the
nature of such comments; even if they are made “off-campus”, the danger and
disruptiveness of the comments do not cease to have effect the moment after
being made. Rather, they remain linked to the speaker, and as the speaker
comes closer to the subject (such as when the student attends school), the
danger becomes more present and the likelihood of disruption increases.
Therefore, the majority’s attempt to limit the school board’s policy as applying
only to activities physically occurring on school grounds runs counter to the
policy’s express language and purpose.
After temporarily suspending Bell and holding two hearings, school
officials considered the rap recording substantially disruptive. And, as noted,
the school board upheld the recommendation of the disciplinary committee,
after the board found Bell’s rap recording constituted a threat, harassment,
and intimidation. In doing so, the school board also reasonably forecast
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further substantial disruption to the school’s mission and school
administrators’ responsibility to protect students and faculty. (Significantly,
the disciplinary-committee hearing and school-board meeting more than
satisfied Bell’s due-process rights. See Harris ex rel. Harris v. Pontotoc Cnty.
Sch. Dist., 635 F.3d 685, 691–92 (5th Cir. 2011) (explaining alternative
education program does not violate Fourteenth Amendment and, for
temporary suspensions, only “an informal give-and-take-between student and
disciplinarian” is required) (emphasis added).)
Citing A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 221 (5th Cir. 2009)
for the proposition that school officials “must base their decisions on fact, not
intuition”, the majority at 19 intimates that the school board disciplined Bell
based on the “mere expectation” of disruption. The summary-judgment
record shows otherwise. For example, Bell’s mother testified that members of
the community believed the language in the rap recording was threatening;
Bell admitted the possibility of violence against the coaches, stating he was
“foreshadowing something that might happen”; and, most importantly, Coach
W. testified that he would not let members of the basketball team leave the
gymnasium until he was in his vehicle, which demonstrates an actual
disruption occurred.
Seeking shelter under the First Amendment, Bell makes two meritless
claims: his rap recording is merely hyperbole and, therefore, protected
speech; and, as a corollary, the school board acted unreasonably.
First, Bell’s claim that the rap recording is not threatening, harassing,
or intimidating is immaterial. Under Tinker, a school may take action so long
as the speech is reasonably forecast to cause a material and substantial
disruption. Shanley, 462 F.2d at 974–75. Here, as discussed supra, it is
reasonable to conclude that a material-and-substantial disruption could occur
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as a result of the statements against the coaches. Possible fact-based
substantial disruptions range, for example, from the coaches’ inability to
properly teach, resulting from students’ loss of respect for the coach, to acts of
violence carried out against the coaches.
Second, Bell’s assertion that the school-board determination was
unreasonable is, itself, unreasonable as a matter of law. E.g., Burnham v.
Ianni, 119 F.3d 668, 679 (8th Cir. 1997). To find Bell’s claim meritorious
would require holding no objectively reasonable person could interpret
language in Bell’s rap recording as threatening, intimidating, or harassing.
Not only does such a conclusion defy common sense, but it also goes against
the undisputed evidence, in particular Coach W.’s statement that the language
frightened him.
The majority attempts to bolster its untenable position by claiming at 2
that the school board did not demonstrate the rap recording “caused a
substantial disruption of school work or discipline, or that school officials
forecasted or reasonably could have forecasted such a disruption”. See also
Maj. Opn. at 23–25 & nn.38 & 41. The school board is not required to engage
in a “substantial disruption” analysis commensurate with that undertaken by
courts assessing speech infringement under Tinker; rather, the school board is
required to show “demonstrable factors” that would give rise to any reasonable
forecast of a substantial disruption. E.g., LaVine v. Blaine Sch. Dist., 257 F.3d
981, 989 (9th Cir. 2001); see also, e.g., D.F. v. Bd. of Educ. of Syosset Cent. Sch.
Dist., 180 F. App’x 232 (2d Cir. 2006) (affirming, without supplementation, the
district court’s conclusion that Tinker supported the school board’s suspension
of a student after finding he had “threatened use and/or contemplated use of a
weapon in violation of the Code of Conduct”).
In sum, Tinker-based judicial decisions assessing substantial-disruption
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speech review the “totality of the relevant facts”, LaVine, 257 F.3d at 989;
“Tinker does not prescribe a uniform, ‘one size fits all’ analysis. The [c]ourt
must consider the content and context of the speech, and the nature of the
school’s response”, Lowery v. Euverard, 497 F.3d 584, 588 (6th Cir. 2007). “We
look not only to [the student’s] actions, but to all of the circumstances
confronting the school officials that might reasonably portend disruption”.
LaVine, 257 F.3d at 989 (citation omitted).
Generally, Tinker provides school administrators may discipline a
student for speech that materially and substantially interferes “with the
requirements of appropriate discipline in the operation of the school”. 393
U.S. at 513 (citation and internal quotation marks omitted). Other courts
have provided additional factors for evaluating the substantiality of a potential
disruption. Relevant facts and circumstances may include: whether the
infringement arose from a “desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint”; whether the speech
identifies an educator “by name, school, or location”; whether a “reasonable
person could take its content seriously”; whether “the record clearly
demonstrates that” anyone took the speech seriously; how the speech reached
the school; and whether the speech “was purposely designed by [the student]
to come onto the campus”. Snyder, 650 F.3d at 926, 929, 951 (Smith J.,
concurring). Additional factors include: whether the speech “directly
pertained to events at” the school; the student’s “intent in” engaging in the
speech; whether the speech was misleading; the nature and seriousness of the
penalty levied on the student; and any in-school disturbances, including
administrative disturbances involving the speaker brought about “because of
the need to manage” concerns over the speech. Doninger v. Niehoff, 527 F.3d
41, 50–52 (2d Cir. 2008).
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The totality of the relevant facts are addressed through the lens of the
bedrock principle that “the determination of what manner of speech in the
classroom or in school assembly is inappropriate properly rests with the school
board, rather than with the federal courts”, and with the understanding that
“Tinker does not require certainty that disruption will occur, but rather the
existence of facts which might reasonably lead school officials to forecast
substantial disruption”. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
267―68 (1988) (citation and internal quotation marks omitted); LaVine, 257
F.3d at 989; see also Lowery, 497 F.3d at 596 (“School officials have an
affirmative duty to not only ameliorate the harmful effects of disruptions, but
to prevent them from happening in the first place.”).
Here, Bell presented a transcription of the recording containing the
threats and references to guns, and he admitted at the disciplinary-committee
hearing that he posted the recording to public websites on the Internet,
intending the language to reach both the school community and the public at
large. Therefore, not only does the summary-judgment record support the
school board’s finding the recording threatened, intimidated, and harassed two
coaches, but this conclusion stems from Bell’s own submissions to, and
admissions before, the disciplinary committee.
The majority also contends at 7, in note 21, that there is no evidence
indicating how many of Bell’s friends listened to the posted recording. This is
irrelevant. Bell admits, and the majority recognizes at 4, that Bell intended
the speech to reach the school community, which it did. The majority further
contends at 7, in note 21, that the Facebook comments undermine this dissent’s
claim that the school board could have forecasted reasonably a substantial
disruption. The majority’s logic is flawed; although potentially representative
of how some would interpret the recording, simply because one segment of the
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population views speech one way does not make another understanding
objectively unreasonable. This red herring by the majority undermines its
position—the only issue of consequence is whether the school board acted
reasonably in viewing Bell’s speech as “threatening, intimidating, or
harassing”, not which interpretation is “more reasonable”.
Further, the majority’s claim ignores that, pursuant to school-district
policy, threatening, harassing, and intimidating teachers is a subset of conduct
constituting “severe disruptions”. It also fails to recognize that, by finding
Bell threatened, harassed, and intimidated the two coaches, the school board
implicitly found Bell caused a severe disruption. Given the content of the rap
recording, Coach W.’s reaction and communication with school authorities,
Bell’s claim that he was speaking about real life, the dissemination of the rap
recording with the knowledge students would access it, and the access by at
least one student in the presence of Coach W., there is no genuine dispute for
whether the school board acted reasonably; it did.
B.
Before this court for de novo review are cross-motions for summary
judgment. As discussed supra, each motion must be reviewed independently.
Assuming arguendo a genuine dispute of material fact exists regarding the
school board’s summary-judgment motion, then a genuine dispute of material
fact also exists regarding Bell’s summary-judgment motion.
The key factor for reviewing the school-board’s motion is the
understandable, and well-established, deference that must be accorded its
decision. It goes without saying that no such deference is accorded the First
Amendment claim in Bell’s summary-judgment motion. The deference
accorded the school board is incorporated in its reliance on true threats and
substantial disruption as the independent bases for its decision.
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Accordingly, assuming arguendo a genuine dispute of material fact exists
regarding that decision by the school board, summary judgment cannot be
rendered for Bell on his First Amendment claim. Instead, that claim must be
remanded to district court for trial. In other words, assuming arguendo the
majority is correct in vacating the summary judgment awarded the school
board on Bell’s First Amendment claim, the majority errs, nevertheless, in
rendering summary judgment for Bell on that claim.
III.
For the foregoing reasons, for Bell’s First Amendment claim, I dissent
from the majority’s both vacating the summary judgment for the school board
and rendering summary judgment for Bell. Instead, the district court’s
judgment should be affirmed on all issues. In the alternative, assuming
arguendo the school board is not entitled to summary judgment against Bell’s
First Amendment claim, the majority cannot render summary judgment for
Bell on that claim; it must be remanded to district court for trial.
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