Public high school officials in Mississippi violated the First Amendment rights of a student punished for posting online his rap song criticizing two coaches for allegedly sexually inappropriate behavior toward female students, a sharply divided federal appeals court has ruled.
Given the sharply divided opinions in the appellate ruling, the case may well offer the U.S. Supreme Court an opportunity to examine a decades-old standard for judging how school officials must view student expression.
Taylor Bell, a then-eighteen year-old student at Itawamba Agricultural High School posted a rap song entitled “P.S. Koaches” on Facebook in December 2010. Bell, who has recorded rap songs at a studio, wrote the song after several female classmates told him two coaches, Michael Wildmon and Chris Rainey, acted in a sexually inappropriate manner toward them.
Bell’s song contained explicit language. He posted the song on YouTube, but did not use school computers to create or post the material. However, school officials suspended Bell and transferred him to an alternative school. In February 2011, Bell and his mother sued school officials, alleging they violated Bell’s First Amendment rights. School officials countered that they could punish Bell because his rap song substantially disrupted school activities and constituted a true threat.
In 2012, a federal district court ruled in favor of school officials, finding that the lyrics of Bell’s song, saying it “was reasonably foreseeable to school officials the song would cause such a disruption.”
Bell appealed the district court’s ruling to the 5th U.S. Circuit Court of Appeals, where a three-judge panel on December 12 reversed the lower court. Bell v. Itawamba County School Board.
Writing for the majority, Judge James L. Dennis said Bell’s rap song was not substantially disruptive or a true threat. In student-speech law, school officials can prohibit student speech if they can reasonably forecast that the student speech would cause a substantial disruption of school activities. This principle comes from the U.S. Supreme Court’s seminal student-speech decision Tinker v. Des Moines Independent Community School District.
School officials can also prohibit student speech that constitutes a true threat.
Judge Dennis noted that school officials could not point to any evidence at Bell’s hearing that the song caused a substantial disruption or even a reasonable forecast of such a problem. The two teachers mentioned in the song testified that they had to alter their teaching styles for fear of being accused of inappropriate behavior, but Judge Dennis reasoned that this was a far cry from meeting the Tinker substantial disruption standard. He wrote that “the facts simply do not support a conclusion that Bell’s song led to a substantial disruption of school operations or that school officials reasonably could have forecasted such a disruption.”
Judge Dennis also reasoned that Bell’s rap song did not constitute a true threat or reveal a serious expression of intent to cause harm. He noted that rap songs often contain “hyperbolic and violent language” and that the song was not communicated directly to the coaches.
Judge Rhesa Hawkins Barksdale wrote a scathing dissent, calling the majority decision “beyond comprehension” and “absurd.” She emphasized that judges must show deference to school administrators in a time when mass school shootings occur. She reasoned that school officials had enough evidence to consider the song substantially disruptive and that “there can be no question that an objectively reasonable person would interpret the rap recording as a true threat.”
School officials have the option of appealing to the full panel of the 5th Circuit or to file for review with the U.S. Supreme Court. The case could present an attractive case to review for several reasons.
First, the majority opinion questions whether the Tinker substantial disruption standard should apply at all to off-campus, online student speech. The opinion further notes a division among different federal appeals courts in how they approach this issue. Second, the panel decision was a sharply divided opinion with very contrasting interpretations of not only the evidence in the case but also the application of the prevailing legal tests.
Finally, the U.S. Supreme Court already has shown a willingness to address whether communications made in the form of rap music constitute a true threat in another case – Elonis v. U.S.
David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute and the author of the award-winning book “Let The Students Speak! A History of the Fight for Free Expression in American Schools.”