Wonder Whether You Can Discipline A Student For Off-Campus Speech?  TINKER IS STILL THE STANDARD

The U.S. Fifth Circuit Court of Appeals, on August 20, 2015, issued a decision in the case of Bell v. Itawamba County School Board, and held that the substantial disruption standard first established in Tinker v. Des Moines Independent County School District, 393 U.S. 503, 514 (1969) was controlling even when the student speech at issue occurred off-campus.  Bell v. Itawamba County Sch. Bd., No. 12-60264 (5th Cir. Aug. 20, 2015).

The Fifth Circuit ruled that a Mississippi district did not violate a student’s First Amendment free speech rights when school officials disciplined the student for a video he created and posted online off-campus that contained threatening language directed at two teachers/coaches. The decision held that the substantial disruption standard enunciated in Tinker v. Des Moines Independent County School District, was controlling even though the student speech in question took place off-campus.  Bell v. Itawamba County Sch. Bd., No. 12-60264.

Facts:  Bell, a student at Itawamba Agricultural High School (IAHS), alleged in his lawsuit that the school district disciplined him in violation of his First Amendment free speech rights. Bell was suspended and sent to an alternative school for five weeks after he posted on Facebook a rap song he had composed and recorded accusing two IAHS coaches of flirting with and maintaining inappropriate contact with female students.

Bell contended that his song “was produced off school property, without using school resources, never played or performed at the school, not performed at a school sponsored event, and never accessed by students on school property.”  A school district disciplinary committee found that his song amounted to harassment and intimidation of school teachers and possible threats against teachers. The committee recommended a seven-day suspension and five weeks at an alternative school. On appeal, the school board upheld the punishment.

Lawsuit:  The suit made three federal claims:  (1) that Bell was disciplined for engaging in constitutionally protected speech; (2) that the discipline violated the parenting rights of his mother as guaranteed by the Fourteenth Amendment Due Process Clause; and (3) that Bell’s speech was entitled to heightened protection as it addressed a matter of public concern. The district court ruled that school officials did not violate Bell’s free speech when they disciplined him for posting the “rap” song, as Tinker held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.

The district court disagreed with Bell’s argument that his speech was entitled to heightened protection because it regarded a matter of public concern.  The court also dismissed the parent’s Fourteenth Amendment due process claim that the school’s disciplinary measures infringed on her liberty interest to make decisions regarding the care, custody and control of her child.

Bell appealed the district court decision to the U.S. Court of Appeals for the Fifth Circuit.  First, a three-judge panel from the Fifth Circuit overruled the district court.  However, the school district moved for rehearing by the entire bench of the Fifth Circuit, which resulted in this decision affirming the district court ruling.

The Court addressed the student’s argument that “Tinker does not apply to off-campus speech, such as his rap recording; and, even if it does, Tinker’s ‘substantial disruption’ test is not satisfied.” It pointed out that when Tinker was decided “the Internet, cellphones, smartphones, and digital social media did not exist.”  While the Court acknowledged that “such communications might be protected speech under the First Amendment,” the majority conceded that “off-campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free speech rights and a school official’s duty to maintain discipline and protect the school community.”

In light of “these competing interests and increasing concerns regarding school violence,” the majority found it “necessary to establish the extent to which off-campus student speech may be restricted without offending the First Amendment.” It found the student’s position that “Tinker does not apply to speech which originated, and was disseminated, off-campus, without the use of school resources” untenable.

The Court then analyzed under what circumstances school officials may restrict off-campus student speech.   Finding that “the pervasive and omnipresent nature of the Internet has obfuscated the on-campus/off-campus distinction,” the Court held: “Tinker governs our analysis, as in this instance, when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimidate a teacher, even when such speech originated, and was disseminated, off-campus without the use of school resources.”

The Court also found that in this case, the student produced and disseminated the song hoping and knowing it would reach school administrators and fellow students, and that the song constituted threats, harassment and intimidation which Bell intentionally direct to the school community.

Finally, the Court applied Tinker’s substantial disruption standard to the facts of the case. It found that Bell’s song either caused an actual disruption or reasonably could be forecast to cause one.  It pointed out that “the manner in which [the student] voiced his concern— with threatening, intimidating, and harassing language—must be taken seriously by school officials, and reasonably could be forecast by them to cause a substantial disruption.” It also noted “the speech pertained directly to events occurring at school, identified the two teachers by name, and was understood by one to threaten his safety and by neutral, third parties as threatening.”

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Student Discipline and Off- Campus Speech or other Education Law matters, please feel free to contact Erin H. Walz at 480.461.5379, log on to www.udallshumway.com or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.