Bell v. Itawamba Cnty. Sch. Bd.

799 F.3d 379

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.

No. 12–60264.

United States Court of Appeals, Fifth Circuit.

Aug. 20, 2015.

Wilbur O. Colom (argued), Scott Winston Colom, Attorney, Colom Law Firm, L.L.C. Columbus, MS, for Plaintiffs–Appellants.

Benjamin Elmo Griffith (argued), Griffith Law Firm, Oxford, MS, Michael Stephen Carr, Esq., Attorney, Griffith & Carr, Cleveland, MS, Michele H. Floyd, Fulton, MS, for Defendants–Appellees.

Scott L. Sternberg, Baldwin Haspel Burke & Mayer, L.L.C., New Orleans, LA, for Amicus Curiae Student Press Law Center.

Allyson Newton Ho, John Clay Sullivan, Morgan, Lewis & Bockius, L.L.P., Dallas, TX, Jeffrey Carl Mateer, General Counsel, Hiram S. Sasser, Esq., Kelly J. Shackelford, Esq., Chief Counsel, Plano, TX, for Amicus Curiae Mary Beth Tinker.

Appeal from the United States District Court for the Northern District of Mississippi.

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, BARKSDALE, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON and COSTA, Circuit Judges.

Opinion

RHESA HAWKINS BARKSDALE, Circuit Judge:

Away from school or a school function and without using school resources (off-campus speech), Taylor Bell, a student at Itawamba Agricultural High School in Itawamba County, Mississippi, posted a rap recording containing threatening language against two high school teachers/coaches on the Internet (first on his publicly accessible Facebook profile page and then on YouTube), intending it to reach the school community. In the recording, Bell names the two teachers and describes violent acts to be carried out against them. Interpreting the language as threatening, harassing, and intimidating the teachers, the Itawamba County School Board took disciplinary action against Bell.

Bell claims being disciplined violated his First Amendment right to free speech. On cross-motions for summary judgment, the district court ruled, inter alia: the school board, as well as the school-district superintendent, Teresa McNeece, and the school principal, Trae Wiygul, acting in their official capacities (the school board), acted reasonably as a matter of law. Bell v. Itawamba Cnty. Sch. Bd., 859 F.Supp.2d 834 (N.D.Miss.2012).

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, 89 S.Ct. 733, 21 L.Ed.2d 731 (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.

I.

On Wednesday, 5 January 2011, Bell, a high-school senior, posted a rap recording on his public Facebook profile page (and later on YouTube), using what appears to be a representation of a Native American as the rap recording's cover image. (His high-school mascot is a Native American.) The recording, in part, alleges misconduct against female students by Coaches W. and R.

Although there are three different versions of the transcribed rap recording in the summary-judgment record, the school board stipulated, at the preliminary-injunction hearing for this action, to the accuracy of the following version provided by Bell, who refers to himself in the recording as “T–Bizzle”. (Accordingly, except for deleting part of both coaches' names, the numerous spelling and grammatical errors in the following version are not noted.)

Let me tell you a little story about these Itawamba coaches / dirty ass niggas like some fucking coacha roaches / started fucking with the white and know they fucking with the blacks / that pussy ass nigga W[.] got me turned up the fucking max /

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 daw-city / the reason he fucking around cause his wife ain't got no tidies /

This niggha 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

What the hell was they thinking when they hired Mr. R[.] / 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 / Talking about you gangsta / drive your mama's PT Cruiser / Run up on T–Bizzle / I'm going to hit you with my rueger

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 / 30 years old fucking with students at the school

Hahahah / You's a lame / and it's a dam shame / instead you was lame / eat shit, the whole school got a ring mutherfucker

Heard you textin number 25 / 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 / you fucking with the wrong one / going to get a pistol down your mouth / Boww

OMG / 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 / 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 codie / W[.] 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

(Emphasis added.)

At the very least, this incredibly profane and vulgar rap recording had at least four instances of threatening, harassing, and intimidating language against the two coaches:

1. “betta watch your back / I'm a serve this nigga, like I serve the junkies with some crack”;

2. “Run up on T–Bizzle / I'm going to hit you with my rueger”;

3. “you fucking with the wrong one / going to get a pistol down your mouth / Boww”; and4. “middle fingers up if you want to cap that nigga / middle fingers up / he get no mercy nigga”.

Bell's use of “rueger” [sic] references a firearm manufactured by Sturm, Ruger & Co.; to “cap” someone is slang for “shoot”.

A screenshot of Bell's Facebook profile page, 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 listen to it.

On Thursday, 6 January, the day after the recording was posted, Coach W. received a text message from his wife, informing him about the recording; she had learned about it from a friend. After asking a student about the recording, the coach listened to it at school on the student's smartphone (providing access to the Internet). The coach immediately reported the rap recording to the school's principal, Wiygul, who informed the school-district superintendent, McNeece.

The next day, Friday, 7 January, Wiygul, McNeece, and the school-board attorney, Floyd, questioned Bell about the rap recording, including the veracity of the allegations, the extent of the alleged misconduct, and the identity of the students involved. Bell was then sent home for the remainder of the day.

Because of inclement weather, the school was closed through Thursday, 13 January. During Bell's resulting time away from school, and despite his having spoken with school officials about his rap recording, including the accusations against the two coaches, Bell created a finalized version of the recording (adding commentary and a picture slideshow), and uploaded it to YouTube for public viewing.

Bell returned to school when it reopened on Friday, 14 January; he was removed from class midday by the assistant principal and told he was suspended, pending a disciplinary-committee hearing. (He was permitted to remain in the school commons until the school bus he rode arrived at the end of the day.) By letter that day to Bell's mother, the superintendent informed her: Bell's suspension would continue until further notification; and a hearing would be held to consider disciplinary action for Bell's “alleged threatening intimidation and/or harassment of one or more school teachers”. The listed, possible basis for such action was consistent with the school district's administrative disciplinary policy, which lists “[h]arassment, intimidation, or threatening other students and/or teachers” as a severe disruption.

The disciplinary-committee hearing, originally scheduled for Wednesday, 19 January, was delayed at Bell's mother's request; it was held on Wednesday, 26 January. Although there is no transcript of the hearing, it was recorded; that recording is in the summary-judgment record. The hearing was facilitated by the school-board attorney, Floyd; three disciplinary-committee members were present, as well as the school principal and Bell, his mother, and their attorney.

The hearing began with the principal's providing a summary of events, after which the YouTube version of the rap recording was played. Among the...