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In December of 2010, Taylor Bell was an eighteen-year-old
senior at Itawamba Agricultural High School who had “no record” of any
disciplinary problems
aside from a single in-school
suspension for tardiness. Bell is an aspiring rap musician, has
written lyrics and music since he was a young boy, and began recording and
seriously pursuing music in his early teens. . . . [S]everal of his female
friends at school told him before Christmas 2010 that two male athletic coaches
at school, Michael Wildmon and Chris Rainey, had inappropriately touched them
and made sexually-charged comments to them and other female students at school.
The record [in the suit he later filed] contains affidavits from female
students stating they informed Bell of this misconduct by Wildmon and Rainey.
According to these affidavits, Wildmon
told one of Bell's classmates, R.M., that she had a `big butt’ and he
would date her if she were older. She also [said] Wildmon had looked down her
shirt, inappropriately touched her, and told her she was `one of the cutest
black female students’ at Itawamba. Another student, D.S., told Bell she
witnessed these incidents between Wildmon and R.M .; in addition, D.S. [told]
Bell Rainey had `rubbed [her] ears at school without her permission, and [she]
had to tell him to stop.’ Yet another, S.S., told Bell Rainey commented to her
that he thought she had `”messed” with some nasty people’ and suggested that he
otherwise would have, in S.S.'s words, `turn[ed][her] back “straight” from
being “gay.”’ A fourth student, K.G., told Bell Rainey approached her in the
gym and said, `damn baby, you are sexy.’
Bell v. Itawamba
School Board, 2014 WL 7014371 (U.S. Court of Appeals for the 5th Circuit 2014).
Bell later said “he did not report” the complaints to school
authorities because “in his, view, the school officials generally ignored
complaints by students about the conduct of teachers and coaches.” Bell v. Itawamba School Board, supra. Instead, over the Christmas holidays, while
school was not in session, he composed and recorded a
rap song about the female students'
complaints at a professional recording studio unaffiliated with the school. . .
. According to Bell, he believed if he wrote and sang about the incidents,
somebody would listen to his music and that it might help remedy the problem of
teacher-on-student sexual harassment.
The song accused Wildmon of
telling students they are `sexy’ and looking down female students' shirts, and
it [said he] `better watch [his] back,’ and `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 / gonna get a pistol down your mouth.’ The
refrain of the song repeated lines to the effect of `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.’ The song referred to Rainey as a second
`Bobby Hill,’ a former Itawamba football coach who was arrested and accused of
sending explicit text messages to a minor in 2009. The lyrics also accused
Rainey of `rubbing black girls' ears in the gym.’
Bell v. Itawamba
School Board, supra. This link will
take you to Bell’s song.
The opinion goes on to explain that “[i]n the first few days
of January 2011, Bell
uploaded the song to his profile on
Facebook using his private computer during non-school hours. On Facebook, the
song was accessible to Bell's pre-approved online `friends.’ The Facebook
website was blocked on school computers. Although any of Bell's Facebook
`friends’ potentially could use a cellphone to access the song on Facebook,
school regulations prohibited students from bringing cellphones to school.
Bell v. Itawamba
School Board, supra.
Bell later testified that when he returned to school after
the Christmas break, he “never played the song at school” and never “encouraged
anyone at school -- students or staff -- to listen to” it. Bell v.
Itawamba School Board, supra. On
January 6, 2011 Wildmon
received a text message inquiring about
the song from his wife, who had been informed of Bell's Facebook posting by a
friend. In response to Wildmon's inquiry,
a student allowed him to listen to the song on the student's cellphone. Wildmon immediately reported it
to the Principal, Trae Wiygul, who, in turn, informed Teresa McNeece, the
Superintendent.
Bell v. Itawamba
School Board, supra.
The next day, Principal Wiygul and the school district’s attorney,
Michele Floyd, asked
Bell about the song and its
accusations. . . . [S]he asked whether Bell meant the teachers were having
sexual relations with students, to which Bell responded that the lyrics meant
the teachers were `messing with kids—not having sexual relations with them. . .
. According to Bell, the school officials never suggested Wildmon or Rainey felt
threatened; instead, it seemed to Bell, the problem was that Wildmon felt . . . `his name had
been slandered.’ Bell [later said] the officials never said school had been
disrupted as a result of the song. After [the meeting,] Bell was sent home for
the rest of that day, which was a Friday. . . . [He] was not given a clear
answer as to . . . why he was being sent home. . . .
Bell v. Itawamba
School Board, supra.
A snowstorm closed the school until the following Friday and
during that week Bell created “a more polished version of the song”, which he
uploaded to YouTube from his home computer. Bell
v. Itawamba School Board, supra. He
went back to class on that Friday and later said he did not notice any
“disruption” due to the song “nor did he tell anyone at school . . . to listen
to” it. Bell v. Itawamba School Board,
supra. Around
mid-day . . . he was removed from class
by the Assistant Principal, who informed him that he was suspended effective
immediately, pending a disciplinary hearing. However, school officials did not
require Bell to immediately vacate the school, and he remained in the school
commons until his school bus arrived at day's end.
Bell v. Itawamba
School Board, supra.
The hearing was held on January 26, 2011, and Michele Floyd
said the purpose was
to determine whether Bell had `threaten[ed],
intimidat[ed], and/or harass[ed] one or more school teachers.’ Bell and
his mother, Dora Bell, were present and were represented by counsel. At the
beginning of the hearing, Principal Wiygul presented a brief summary of the
events leading up to the disciplinary hearing. The Committee then listened to
the YouTube version of the song.
Bell was asked why he composed,
recorded, and posted the song. He explained that he had written [it] in
response to the coaches' inappropriate behavior toward female students. He [said]
he did not believe telling the school authorities about the coaches' misconduct
would have accomplished anything because school officials had failed to respond
to other students' complaints in the past. During the hearing, Bell
presented letters from female students corroborating the allegations of the
coaches' misconduct. The Committee [said] the Board was concerned about the
coaches' possible misconduct and would investigate those allegations, but it
explained that those allegations were not relevant to Bell's hearing.
Bell v. Itawamba
School Board, supra.
When members of the Disciplinary Committee asked Bell about
his “intentions” with
respect to the song and whether the
violent lyrics reflected an intention to harm the coaches. Bell conveyed that
the song was a form of artistic expression meant to reflect his real-life
experiences and to increase awareness of the situation. Bell explained the
lyrics were not intended to intimidate, threaten, or harass Wildmon or Rainey. However, he
indicated the lyrics did reflect the possibility that a parent or relative of
one of the female students might eventually react violently upon learning that
the coaches were harassing their children -- not that Bell would
react violently.
Bell v. Itawamba
School Board, supra (emphasis in the original).
The next day Floyd sent Bell’s mother a letter that said the
Disciplinary Committee had decided “to uphold the suspension already imposed on
Bell, to place Bell in an alternative school for the remainder of the nine-week
grading period, and to prohibit Bell from attending any school functions during
that time.” Bell v. Itawamba School
Board, supra. It also said the Committee found that “whether Bell's song
constituted a `threat to school district officials was vague’”, but found it “harassed
and intimidated the coaches in violation of Itawamba School Board policy and
unspecified state law.” Bell v. Itawamba
School Board, supra.
About two weeks later, Bell and his mother filed a 42 U.S.Code § 1983 civil rights suit in the U.S. District Court for the Northern District of Mississippi against the Itawamba County School Board, Superintendent McNeece
and Principal Wiygul, claiming that they violated Taylor Bell's 1st Amendment right to free speech by imposing school discipline
on Bell for his off-campus composition,
recording and Internet-posting of his rap song. Bell sought nominal damages and injunctive relief ordering reinstatement of his school privileges,
expungement from his school records of all references to the incident, and
prevention of the defendants from enforcing the school disciplinary code
against students for expression that takes place outside of the school or
school-sponsored activities, as well as attorneys' fees and costs.
Bell v. Itawamba
School Board, supra.
The Judge held a hearing on Bell’s request for a preliminary
injunction at which “a number” of witnesses testified, two of whom were Rainey
and Wildmon. Bell v. Itawamba School Board,
supra. Rainey said he “had not heard
the song and felt it was `just a rap,’ not to be taken seriously, and felt that
if he `let it go, it [would] probably just die down.’” Bell v. Itawamba School Board, supra. He also said it “`affected’” the way he
“`talk[ed] to kids,” and led him to “avoid interactions with students that might
be interpreted as being inappropriate.” Bell
v. Itawamba School Board, supra.
Wildmon said “`the song caused him to be more cautious around students
and to avoid the appearance that he was behaving inappropriately toward them’”.
Bell v. Itawamba School Board, supra. He also said he “felt `scared’ after hearing
the song since `you never know in today's society . . . what somebody means,
how they mean it.” Bell v. Itawamba
School Board, supra.
At the end of the hearing, the District Court Judge the
district court denied the motion for the preliminary injunction as “moot
because Bell had only one day of alternative school remaining.” Bell v. Itawamba School Board, supra. Then, since both sides had filed motions for
summary judgment on their respective behalfs, the judge granted
summary judgment in favor of the
Defendants. The court concluded that, pursuant to Tinker v. Des Moines Independent Community School District, 393 U.S. 5031 (1969) [“Tinker v. Des Moines”], the song's
lyrics `caused a material and/or substantial disruption at school and it was
reasonably foreseeable to school officials the song would cause such a
disruption.’ Specifically, the court [said] Wildmon's and Rainey's testimony that the song `adversely
affected’ their teaching styles constituted an `actual disruption’ to school
activities. The court also concluded it was `reasonably foreseeable’ that the
song, which `levies charges of serious sexual misconduct against two teachers
using vulgar and threatening language and . . . is published on Facebook.com to
at least 1,300 ‘friends' . . . and the unlimited internet audience on YouTube.com, would
cause a material and substantial disruption at school.’
Bell v. Itawamba
School Board, supra.
Bell and his mother, Dora Bell, then appealed the judge’s
decision to the U.S. Court of Appeals for the 5th Circuit. Bell v.
Itawamba School Board, supra. The
Court of Appeals began its analysis of the appeal by noting that summary
judgment is “`proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law”. Bell v. Itawamba School Board, supra (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986) (quoting Rule 56(c) of the Federal Rules of Civil Procedure)).
The court then noted that Tinker, Court held that school officials can prohibit student
speech and expression upon showing `facts
which might reasonably have led school authorities to forecast [that the
proscribed speech would cause] substantial disruption of or material
interference with school activities.’ Tinker v. Des Moines, supra. School officials `must be able to show that [their]
action[s] [were] caused by something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint.’ Tinker v. Des Moines, supra. It is
a school's burden to prove that its suppression of student speech conforms with
this governing standard.
Bell v. Itawamba
School Board, supra.
The Court of Appeals also noted that it had held, in other,
similar cases, that while
`school officials may prohibit speech
based on a forecast that the prohibited speech will lead to a material
disruption, the proscription cannot be based on the officials' mere expectation
that the speech will cause such a disruption.’ AM. ex rel. McAllum v.
Cash, 585 F.3d 214 (U.S. Court of Appeals for the 5th Circuit 2009).
Further, school officials `must base their decisions “on fact, not intuition,
that the expected disruption would probably result from the exercise of the
constitutional right and that foregoing such exercise would tend to make the
expected disruption substantially less probable or less severe.”’ AM.
ex rel. McAllum v. Cash supra (quoting Butts v. Dallas Indep. Sch.
Dist., 436 F.2d 728 (U.S. Court of Appeals for the 5th Circuit 1971)).
. . .
Bell v. Itawamba
School Board, supra. It also pointed
out that since the Tinker case,
the Supreme Court has recognized that,
even if on-campus speech or speech at school-approved events is non-disruptive
within the meaning of Tinker, school officials may restrict
that speech in a limited set of circumstances: if it is lewd or vulgar, BethelSch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), if it is school-sponsored
and the restriction is `reasonably related to legitimate pedagogical concerns,’ HazelwoodSch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), or if it is reasonably
viewed as promoting the use of illegal drugs, Morse v. Frederick, 551U.S. 393 (2007). However, in all of these cases, the speech at issue occurred
on campus or at a school-approved event where the school's conduct rules
expressly applied. . . .
Bell v. Itawamba
School Board, supra.
The court went on to explain that “contrary” to the District
Court Judge’s decision, the
Supreme Court in Tinker did
not hold that the `substantial-disruption’ test applies to off-campus speech.
Instead, when the Court stated that, `[a] student's rights . . . do not embrace
merely the classroom hours’ and that, `conduct by the student, in class or out
of it, which . . . materially disrupts . . . is, of course, not immunized by
the constitutional guarantee of freedom of speech”. Tinker
v. Des Moines, supra. The Court was simply indicating that the delicate
balance between the protection of free speech rights and the regulation of
student conduct extends to all facets of on-campus student speech and not just
that occurring within the classroom walls.
Accordingly, the Court further stated,
`When he is in the cafeteria, or on the playing field, or on the campus during
the authorized hours, he may express his opinions, even on controversial
subjects . . ., if he does so without “materially and substantially
interfer(ing) with the requirements of appropriate discipline in the operation
of the school” and without colliding with the rights of others.’ Tinker v. Des Moines, supra. When read
in context, the Tinker Court did not intend that its holding would
allow a public school to regulate students' freedom of speech at home and off
campus. Rather, the Court meant that the governing analysis would
apply `in class or out of’ the classroom while the student is on campus during
authorized hours. The Court's subsequent student speech cases make this
distinction clear. Hazelwood
School District v. Kuhlmeier, supra.
Bell v. Itawamba
School Board, supra.
It also explained that the School Board could not rely on
Tinker as a defense because
even assuming arguendo that
the Tinker `substantial-disruption’ test could be applied to a
student's off-campus speech, the summary-judgment evidence
establishes that no substantial disruption ever occurred, nor does it `demonstrate
any facts which might reasonably have led school authorities to forecast
substantial disruption of or material interference with school activities.’ Tinker v. Des Moines, supra. Viewing the
evidence in the light most favorable to the School Board, there was no
commotion, boisterous conduct, interruption of classes, or any lack of order,
discipline and decorum at the school, as a result of Bell's posting of his song
on the Internet. . . . [T]he
School Board's inability to point to any evidence in the record of a disruption
directly undermines its argument and the district court's
conclusion that the summary-judgment evidence supports a finding that a
substantial disruption occurred or reasonably could have been forecasted. . . .
No evidence was offered that Bell or
any other student listened to the song on campus, aside from the single
instance when Wildmon had a student play the song for him on his cellphone. The
only particularized evidence of a purported disruption that the . . .
district court identified as stemming from Bell's song was that Rainey and
Wildmon have altered their teaching styles in order to ensure they are not
perceived as engaging in inappropriate conduct with female students. However,
the teachers' alteration of their teaching styles in order to avoid accusations
of sexual harassment does not constitute the material and substantial
disruption of school work or discipline that would justify the restriction of
student speech under Tinker.
Bell v. Itawamba
School Board, supra (emphasis in the original).
The Court of Appeals also noted that (i) the evidence “conclusively
shows Bell's song was composed, recorded, and posted to the Internet entirely
off campus” and (ii) school computers blocked students from accessing it on
campus and (iii) “ the violent lyrics contained in Bell's song were
plainly rhetorical in nature, and could not reasonably be viewed as a genuine
threat to the coaches”. Bell v. Itawamba School Board, supra.
For these and other reasons, it ordered that the District
Court Judge’s judgment
is REVERSED IN PART, and judgment is
RENDERED in favor of Taylor Bell against the School Board on his First
Amendment claim. The case is REMANDED, and the district court is DIRECTED to
award Bell nominal damages, court costs, appropriate attorneys' fees, and an
injunction ordering the School Board to expunge all references to the incident
at issue from Bell's school records.
Bell v. Itawamba
School Board, supra.
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