Fifth Circuit Upholds Discipline of Student for Online, Off-campus Speech

In Bell v. Itawamba County School Board, the Fifth Circuit Court of Appeals, en banc, which does not govern Illinois school districts, recently upheld the discipline of a student for online, off-campus speech the student produced without using school resources.

The court found the speech to be directed intentionally at the school community and reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher and held that such speech was not protected by the First Amendment.

Previously, in December 2014, in a divided panel of three judges, the Fifth Circuit held, among other things, that the school board had violated the student’s First Amendment right by disciplining him. The student then petitioned for a rehearing of the matter “en banc,” meaning that the entire bench of judges should hear his case.

Taylor Bell, a high school student, 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). 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 to the teachers, the school board suspended Bell for one week and placed him in an alternative school for an additional six weeks.

Bell filed suit in response, claiming that being disciplined violated his First Amendment right to free speech. The school district presented evidence that the two coaches who were threatened were adversely affected in their work at school as a result of the video, including feeling uncomfortable around female students as a result of allegations in the rap song suggesting one coach had engaged in misconduct with them. The other coach testified that he was scared and that he would not allow members of the school basketball team he coached to leave after games until he was in his vehicle.

Noting increasing concerns regarding school violence as well as the proliferation of Internet access and social media use, the court concluded that school officials must be able to discipline Bell in this instance in order to react quickly and efficiently to protect students and faculty.

The court also explained that the speaker’s intent matters when determining whether the off-campus speech  warrants disciplinary action by schools. Because Bell admitted that his purpose was to increase awareness of alleged misconduct by the coaches, that he knew people were going to listen to it, and that students have Facebook, the court concluded he intended to direct his video at the school community.

The law in the area of disciplining students for their off-campus speech is by no means settled. For instance, the entire court of the Third Circuit Court of Appeals (which also does not govern Illinois) has previously issued two separate decisions finding that school suspensions given to students for creating inappropriate profiles of their school principals on MySpace violated the students’ First Amendment rights.  While not governing law in Illinois, these cases illustrate the difficulties facing school administrators seeking to manage student use of a variety of social media.

Unless and until the Supreme Court resolves these issues, school districts seeking to discipline students for inappropriate use of social media outside of school face significant constitutional hurdles. Contact Bennett Rodick or Lori Martin regarding your student discipline inquiries.

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