In a case closely watched by public school districts in the 5th Circuit, the en banc federal appellate court ruled in favor of a Mississippi school district who suspended and placed in alterative school a high school student who wrote and produced a rap song to, as the student asserted, bring attention to two coaches whom he believed were sexually harassing female students. The student, who goes by the stage name “T-Bizzle,” produced the rap in early 2011 and posted the rap to his public Facebook page and later to YouTube (a purported representation of which can be found here). The lyrics are noted below and are taken directly from the 5th Circuit’s opinion:
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
(emphases added by the appellate court, 2015 U.S. App. LEXIS 14630 at *4-6)
Focusing on the italicized language above, the court termed the rap “incredibly profane and vulgar.”
Two days after the rap was posted, the principal, superintendent, and school board attorney questioned the student and sent him home for the day. During a five day break due to inclement weather, the student further edited the rap and posted it to YouTube. When the student returned to school, the assistant principal suspended the student pending a disciplinary hearing, which ultimately resulted in the student’s placement in a disciplinary alternative education program for the remainder of the grading period (which amounted to roughly six weeks), also prohibiting the student from participating in extracurricular activities. The superintendent communicated to the student’s mother that her son would remain under suspension until the disciplinary hearing, where the student was “charged” with alleged “threatening intimidation and/or harassment of one or more school teachers” (internal quotation marks and citation omitted), and that this behavior violated the school district’s policy, which termed “harassment, intimidation, or threatening other students and/or teachers” as severely disruptive. Importantly, the court observed that in the disciplinary hearing, the student admitted he publicly posted the video knowing that students and others would view the video. In addition, the student asserted that he never intended to shoot anyone, but only was suggesting what might happen. Finally, he acknowledged that others outside of school commented to his mother that “put[ting] a pistol down your mouth” was a direct threat. Ultimately, the hearing process resulted in the board finding that the student “threatened, harassed, and intimidated school employees,” resulting in the alternative education placement.
Shortly thereafter, the student and his mother filed suit, asserting in relevant part that the school’s discipline of the student for his off-campus produced and posted digital speech violated his free speech rights under the First Amendment. A federal district court denied the student’s request for injunctive relief; noteworthy from the court’s injunction hearing was that both coaches testified that the rap “adversely affected their work” at school, with one coach averring that he avoided working with female students on his track team, and the second asserting that he was “scared,” not knowing what might happen. On cross-motions for summary judgment, the federal district court ruled against the student and in favor of the district. A divided three-judge panel of the 5th Circuit reversed the district court and held that the district and its officials violated the student’s free speech rights.
By a strong majority, the en banc 5th Circuit affirmed the federal district court’s denial of summary judgment to the student and the grant of summary judgment to the school district. In its opinion, the majority traced the history of First Amendment jurisprudence from Tinker v. Des Moines Cmty. Sch. Dist., 393 U.S. 503 (1969) to the present day. In determining that Tinker’s “material and substantial interference” standard applied to the “off-campus speech at issue” in this case, the court rejected the student’s assertion to the contrary. The court observed that:
Over 45 years ago, when Tinker was decided, the Internet, cellphones, smartphones, and digital social media did not exist. The advent of these technologies and their sweeping adoption by students present new and evolving challenges for school administrators, confounding previously delineated boundaries of permissible regulations. (2015 U.S. App. LEXIS 14630 at *27)
Acknowledging the challenge that school officials face when balancing the need to maintain order and safety at school against the rights of students to engage in speech away from school, it noted Justice Alito’s concurring opinion in Morse v. Frederick, 551 U.S. 393 (2007), i.e., “school officials must have greater authority to intervene before speech leads to violence” (internal quotation and citations omitted). Thus, in a review of federal appellate decisions since Tinker considering the extent to which school officials may regulate off-campus speech, the court found that five of the six appellate courts (including the 5th Circuit) have so applied Tinker, and held that Tinker does apply to student “off-campus speech in certain situations.”
Next, the court determined that it did not need to “adopt a specific rule” to determine under what situations Tinker applies, holding that it applied to this student’s situation, as the student intentionally directed the speech “to the school community,” and the speech threatened, harassed and intimidated the two teachers at whom the rap was directed. Thus, the court, while not purporting to adopt a “bright-line” rule, held that:
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. (2015 U.S. App. LEXIS 14630 at *37)
In applying this fact-specific standard, the court found that the student, by his own admission, intended his rap to reach the school community; further, the court found that school officials reasonably concluded that the speech constituted “threats, harassment, and intimidation, as a layperson would understand the terms” (2015 U.S. App. LEXIS 14630 at *38), directed specifically at the two coaches.
For very similar reasons, the court held that it should give significant deference to the school board’s judgment that the speech could reasonably have forecast a material and substantial interference with school order and discipline. Indeed, the court noted that, based on circuit precedent, “school authorities are not required expressly to forecast a ‘substantial or material disruption’”, but must “offer facts to support their proscription” of the speech at issue. In this analysis, the court recited factors that other circuits have taken into account to determine whether speech could reasonably be determined to be materially and substantially disruptive, including: (1) “the nature and content of the speech,” (2) “the objective and subjective seriousness of the speech,” (3) “the severity of the possible consequences should the speaker take action,” (4) “the relationship of the speech to the school,” (5) “the intent of the speaker to disseminate, or keep private, the speech,” (6) “the nature, and severity, of the school’s response in disciplining the student,” (7) “whether the speaker expressly identified an educator or student by name or reference,” (8) “past incidents arising out of similar speech,” (9) “the manner in which the speech reached the school community,” (10) “the intent of the school in disciplining the student,” and (11) “the occurrence of other in-school disturbances, including administrative disturbances involving the speaker, such as ‘[s]chool officials ha[ving] to spend considerable time dealing with these concerns and ensuring that appropriate safeguards were in place’, brought about ‘because of the need to manage concerns over the speech’” (2015 U.S. App. LEXIS 14630 at *43-44, internal citations omitted). Applying this host of factors to the rap, the court found that the manner in which the student communicated his concerns about the coaches’ alleged misconduct, i.e, “with threatening, intimidating, and harassing language,” led school officials to reasonably conclude that this speech could foreshadow a material and substantial disruption; that the speech was directed by name at the two coaches; that the school’s disciplinary response was “measured”; and that recent examples of school violence that were foreshadowed by writings, electronically or otherwise (e.g., Virginia Tech) gave school officials reason to discipline this student for the rap.
Finally, the majority ended its opinion with a strong passage in determining that the school district’s response in this case was reasonable:
In determining objective reasonableness vel non for forecasting a substantial disruption, the summary-judgment record and numerous related factors must be considered against the backdrop of the mission of schools: to educate. It goes without saying that a teacher, which includes a coach, is the cornerstone of education. Without teaching, there can be little, if any, learning. Without learning, there can be little, if any, education. Without education, there can be little, if any, civilization.
It equally goes without saying that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability to educate. It disrupts, if not destroys, the discipline necessary for an environment in which education can take place. In addition, it encourages and incites other students to engage in similar disruptive conduct. Moreover, it can even cause a teacher to leave that profession. In sum, it disrupts, if not destroys, the very mission for which schools exist--to educate.
If there is to be education, such conduct cannot be permitted. In that regard, the real tragedy in this instance is that a high-school student thought he could, with impunity, direct speech at the school community which threatens, harasses, and intimidates teachers and, as a result, objected to being disciplined. (2015 U.S. App. LEXIS 14630 at *47-48).