Court Reverses Previous Decision; Upholds Suspension For Student Who Rapped About School Employee Misconduct

from the this-speech-we-said-was-protected?-yeah...-I-guess-it-isn't-anymore... dept

Late last year, we covered a Fifth Circuit Court of Appeals decision pertaining to a high school student who was suspended from school because he uploaded a "disruptive" rap song to his Facebook account. While the song was vulgar and hinted at violence towards a school employee (who was allegedly taking advantage of female students), it was recorded and uploaded off-campus during non-school hours.

The divided decision found in favor of the student (Taylor Bell) and overturned his suspension. As the decision noted then, most of the claimed "disruption" was solely in the minds of the school administration.

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 (Coach Michael) 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.

Because of the division in opinions in the original panel's decision, an en banc review was granted. And the pendulum has now swung in the other direction and Bell's suspension has been upheld.

Primarily at issue is whether, consistent with the requirements of the First Amendment, off-campus speech directed intentionally at the school community and reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher satisfies the almost 50-year-old standard for restricting student speech, based on a reasonable forecast of a substantial disruption. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969) (infringing otherwise-protected school speech requires “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities”). Because that standard is satisfied in this instance, the summary judgment is AFFIRMED.

The 101-page decision, containing both additional concurrences and dissents, focuses more closely on the "disruptive" aspects of Bell's speech. Contrary to the original finding of the three-judge panel last year, the en banc review sees enough "disruption" to justify the school's actions.

Without learning, there can be little, if any, education. Without education, there can be little, if any, civilization.

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

If there is to be education, such conduct cannot be permitted. In that regard, the real tragedy in this instance is that a high-school student thought he could, with impunity, direct speech at the school community which threatens, harasses, and intimidates teachers and, as a result, objected to being disciplined. Put succinctly, “with 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 to anticipate an impact on the classroom environment”. Snyder, 650 F.3d at 951– 52 (Fisher, J., dissenting). As stated, the school board reasonably could have forecast a substantial disruption at school, based on the threatening, intimidating, and harassing language in Bell’s rap recording.

So, because the disruption could "reasonably" be "forecast" (even if there is little evidence such forecasted disruption ever occurred), the school did not err in punishing Bell for off-campus activities.

Judge E. Grady Jolly, in a concurring opinion, goes even further than the majority decision (which did not examine the "true threat" aspects of Bell's rap track) and declares certain forms of student speech wholly unprotected.

Student speech is unprotected by the First Amendment and is subject to school discipline when that speech contains an actual threat to kill or physically harm personnel and/or students of the school; which actual threat is connected to the school environment; and which actual threat is communicated to the school, or its students, or its personnel.

Not a statement anyone can really disagree with, but also an area the en banc panel didn't explicitly cover and also one mostly ignored by the school, which could have pursued criminal charges instead if they truly believed Bell's track was an "actual threat." (Instead, the school found Bell so "threatening" it didn't confront him about this track until nearly the end of the school day.)

The dissent, written by Judge James L. Davis, is scathing in its assessment of the majority's decision to grant deference to the presumed sanctity of the learning environment. In doing so, the majority has allowed two things to happen, both of them bad.

First, it has loosened the restrictions governing schools' punishment of students for off-campus behavior.

[T]he majority opinion obliterates the historically significant distinction between the household and the schoolyard by permitting a school policy to supplant parental authority over the propriety of a child’s expressive activities on the Internet outside of school, expanding schools’ censorial authority from the campus and the teacher’s classroom to the home and the child’s bedroom.

Even worse, the opinion sets a precedent that implicitly states certain public figures may not be criticized by certain individuals.

Although mischaracterizing itself as “narrow” in scope, the en banc majority opinion broadly proclaims that a public school board is constitutionally empowered to punish a student whistleblower for his purely off-campus Internet speech publicizing a matter of public concern.

Bell's rap song was a response to multiple complaints from female students about inappropriate comments and sexual overtures from two of the school's coaches. These complaints became sworn affidavits once the legal process was underway. So, even with the violent imagery, the track dealt mostly with the alleged misconduct of school employees. The en banc decision turns this sort of criticism into punishable behavior, especially if a school can "reasonably foresee" a possible disruption. Whether or not this disruption actually occurs is largely inconsequential.

Judge Davis says this is free speech, alright, if you like your "free speech" surrounded by scare quotes.

Even in the most repressive of dictatorships, the citizenry is “free” to praise their leaders and other people of power or to espouse views consonant with those of their leaders. “Freedom of speech” is thus a hollow guarantee if it permits only praise or state-sponsored propaganda. Freedom of speech exists exactly to protect those who would criticize, passionately and vociferously, the actions of persons in power. But that freedom is denied to Bell by the majority opinion because the persons whose conduct he dared to criticize were school teachers. If left uncorrected, the majority opinion inevitably will encourage school officials to silence student speakers, like Taylor Bell, solely because they disagree with the content and form of their speech, particularly when such off-campus speech criticizes school personnel.

The majority does note that social media's ability to "bleed" into school life poses problems unanticipated by earlier decisions (like 1969's Tinker), but rather than explore that issue further, it simply decided on- and off-campus behavior were roughly inseparable if negative discussion of school employees in involved. The very low bar of "reasonably foreseeable disruption" grants schools leeway to arbitrarily punish off-campus speech. Anything can be "reasonably foreseeable," if enough imagination is applied and enough empathy is granted to these projections by the courts. And any post facto lack of disruption seemingly does nothing to harm schools' arguments in defense of their overreactions.

Filed Under: fifth circuit, first amendment, free speech, rapping, students, taylor bell