Former Mississippi student who was suspended for posting rap song online loses his appeal to the Fifth Circuit appeals court

MISSISSIPPI — The U.S. Court of Appeals for the Fifth Circuit has ruled in favor of a Mississippi school district in a First Amendment case where a former high school student was punished for posting online a profanity-filled rap about two school coaches.

Taylor Bell was suspended from Itawamba Agricultural High School in January 2011 after he posted a homemade rap video to Facebook and Youtube. The song, which was posted outside of school grounds, came after female students complained that two male coaches at the school had made sexual comments about their bodies. Administrators said the rap song threatened the coaches — and according to the ruling, one of the coaches said he was scared for his safety.

“Looking down girls shirts / drool running down your mouth / you fucking with the wrong one / going to get a pistol down your mouth / Boww,” Bell wrote in his song.

The Fifth Circuit opinion, which was issued Thursday, affirms the district court’s ruling that the school administrators reasonably understood the speech to be threatening, harassing and intimidating the teachers, and that the song caused a “substantial disruption” at school.

With this decision, the appeals court overturned its previous ruling from December, in which two out of three judges voted in favor of Bell, saying that the song did not cause a substantial disruption and because the song was recorded off campus, the Tinker test did not apply. The court decided in February for all 15 Fifth Circuit judges to rehear the case. In this ruling, four justices dissented from the majority, at least in part.

In the 1969 landmark ruling of Tinker v. Des Moines Independent Community School, the U.S. Supreme Court ruled that school officials may not censor student speech unless it causes a substantial or material disruption to the educational operation of the school. Since then, courts have been divided about whether Tinker covers off-campus speech. The Supreme Court has not yet addressed the issue.

Scott Colom, Bell’s lead attorney, has previously told the SPLC that Bell would consider going to the Supreme Court if the Fifth Circuit overturned his appeal and that “this issue is ripe for Supreme Court review.” Colom did not respond to requests for comments on Thursday.

A ‘favorable attitude toward education’

Michele Floyd, attorney for the Itawamba School District, said she was excited about the ruling and the “implications that it has for the school districts in our circuit.”

“I was very pleased with the majority opinion’s very favorable attitude toward education and the hurdles educators have in disciplining students and maintaining control in classrooms, and how hard that is these days,” she said.

The majority opinion, which was authored by Judge Rhesa Hawkins Barksdale, stated that the factors for forecasting a substantial disruption must be “considered against the backdrop of the mission of schools: to educate.” Threatening a teacher, the opinion continued, “impedes, if not destroys, the discipline necessary for an environment in which education can take place.”

“If there is to be education, such conduct cannot be permitted,” Barksdale wrote. “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.”

The opinion also cited “the recent rise in incidents of violence against school communities” as a reason for school administrators to take seriously — and react quickly to — any statements by students that could be threats of violence. Because of this, Barksdale wrote, “it is necessary to establish the extent to which off campus student speech may be restricted without offending the First Amendment.”

Frank LoMonte, executive director of the Student Press Law Center, which filed an amicus brief in the case in June 2012 on behalf of Bell, said the whole opinion was built on a “hallucination that schools are more dangerous than ever before when every statistic proves otherwise.”

It’s a faulty stereotype, he said. Research has found that rates of school violence have decreased significantly since the early 1990s, but high-profile incidents of school shootings have heightened a sense of national concern for the safety of students.

The Tinker question

The Fifth Circuit court held that Tinker can apply to off-campus speech — writing that this was first established as a precedent by the Circuit in 1972 in Shanley v. Northeast Independent School District. Barksdale wrote that in Bell’s case, the Tinker standard did apply because his song could be reasonably forecast to cause a disruption: Bell wanted the song to be public and to reach the school community, it pertained directly to events at school, identified the coaches by name — one of whom thought it threatened his safety — and neutral third parties found it to be threatening.

“To me, the single most alarming thing [in the opinion] is that all speech is now Tinker speech,” LoMonte said.

In the four written dissents, most judges said Tinker should not apply to off-campus speech, or at least it should be a modified standard.

“… Our Circuit should hesitate before carving out a new category of unprotected speech,” Judge Edward C. Prado wrote in a dissent, adding that these issues need to be addressed by the Supreme Court.

In Judge James L. Dennis’ dissent, he wrote that the majority opinion could lead to the silencing of student speakers if school officials disagree with the “content and form” of their speech — particularly off-campus speech that criticizes school employees.

He wrote that this violates the Tinker principle that students are not “confined to expression of those sentiments that are officially approved.”

“Freedom of speech exists exactly to protect those who would criticize, passionately and vociferously, the actions of persons in power,” Dennis wrote. “But that freedom is denied to Bell by the majority opinion because the persons whose conduct he dared to criticize were school teachers.”

Contact SPLC staff writer Madeline Will by email or at 202-833-4614.