Reversing district court decision, appeals court rules in favor of former Mississippi student punished for posting rap song online

MISSISSIPPI — An appeals court has reversed a district court’s 2012 decision that found a school district could suspend a student who uploaded to the internet a profanity-filled rap song alleging two staff members had inappropriate contact with students.

In a 2-1 ruling, the United States Court of Appeals for the Fifth Circuit struck down the ruling Friday and issued a summary judgement in favor of Taylor Bell — a student who produced and posted a rap video on Facebook and YouTube in January 2011 when girls at Itawamba Agricultural High School complained two coaches commented on their bodies and said they were sexy.

Bell rapped that the coaches were “Looking down girls’ shirts / Drool running down your mouth.”

“We do have a say, and they have to listen because that’s only what’s right,” Bell said in an interview with the Student Press Law Center. He said the decision has been a long time coming since they filed an appeal in 2012.

The appeals court ruled the song did not cause “substantial disruption” at school, as the district court ruled. Because Bell recorded his rap song off campus, the district court’s decision that Tinker v. Des Moines Independent Community School District allowed the school district to suspend Bell because the song caused a disruption was “legally incorrect,” according to the ruling.

Tinker v. Des Moines, a 1969 landmark U.S. Supreme Court case, ruled that students “do not shed their constitutional freedoms at the schoolhouse gate,” prohibiting the censorship of student expression unless it is disruptive to the school’s educational environment or invades another person’s rights. Federal courts have been divided over whether the Tinker ruling, which was about an on-campus political protest, can apply to off-campus speech on students’ personal time, an issue the Supreme Court has yet to address.

“The court really stepped up and said ‘students have a right to say, create and make songs away from school,’” Bell’s attorney, Scott Colom, said. “And as long as they don’t do anything to bring those songs to the campus, then the school doesn’t have universal, all-consuming power to punish them for it.”

Bell was suspended in January 2011 after administrators heard the song, arguing it threatened the teachers. After the Itawamba County School Board of Education upheld his suspension, Bell and his mother sued the school district in the U.S. District Court for the Northern District of Mississippi in February 2011, alleging the district violated his First Amendment rights.

The district court ruled in favor of the school district under the Tinker standard of “substantial disruption” to the educational process. Colom said the decision gave schools and the state the power to punish students’ speech in their free time.

But the two-judge majority on the appeals court, in an opinion written by Judge James L. Dennis, said Bell’s speech deserved protection as speech addressing possible misconduct by school employees, a matter of public concern. Dennis noted that, even if the Tinker case did allow the school to punish off-campus speech with “disruptive” effects, no disruption was shown, other than the coaches’ decision to “alter their teaching styles” so as not to be accused of sexual harassment in the future.

Michael Carr, attorney for the Itawamba County School District, declined to comment. Benjamin Griffith, who also represents the school district, did not respond to a telephone call and email requesting comment.

In June 2012, the Student Press Law Center submitted an amicus brief in favor of Bell’s First Amendment right to rap about the complaints against teachers.

“For some, protest comes in the form of a black armband,” said Scott Sternberg, an attorney with Baldwin Haspel Burke & Mayer, LLC in New Orleans, who wrote the SPLC brief, in reference to the Tinker case. “For others, it comes in a YouTube clip in which they mimic the pop culture of today.”

SPLC staff writer Anna Schiffbauer can be reached by email or at (703) 807-1904 ext. 127.