Profanity laced threats by school rapper not protected by 1st Amendment

A Mississippi federal district court summarily dismissed a case against a school district and its officials for disciplining a student who had posted an invective and threat-filled rap song on his Facebook page and on YouTube. Taylor Bell, a senior at Itawamba Agricultural High School, composed, sang, and recorded a rap song that he then posted on to Facebook so that it could be viewed by his over 1,300 Facebook friends and then went on to publish the song on YouTube. The vulgar song accuses two of the school’s coaches of having inappropriate contact with underage female students. According to court documents, “the last two verses include the phrases:(1) ‘looking down girls’ shirts / drool running down your mouth / messing with wrong one / going to get a pistol down your mouth’ and (2) ‘middle fingers up if you can’t stand that nigga / middle fingers up if you want to cap that nigga.’”

Taylor Bell, former Itawamba High School student

In Bell v. Itawamba County School Board, Judge Neal Biggers upheld the seven day suspension and administrative transfer levied by the school upon discovering the song. Applying the Tinker standard, the court found that

Taylor Bell’s song caused a material and/or substantial disruption and it was reasonably foreseeable that such a disruption would occur. The song is not protected by the First Amendment, and the school did not err in punishing Bell for publishing it to the public. Therefore, Taylor Bell’s claim that his First Amendment rights were violated by the school should be dismissed with prejudice.

This is another in string of federal cases where student off-campus speech has been held actionable by the courts. Under Tinker, “conduct by a student, in class or out of it” which “materially disrupt classwork or involves substantial disorder or invasion of rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” The court noted that Tinker‘s material or substantial disruption standard has been expanded to allow speech to be regulated where such issues are only foreseeable, not having yet occurred.

In reaching its holding the court applied the following test:

(1) whether Taylor Bell’s song caused or tended to cause a material and/or substantial disruption at school or (2) whether it was reasonably foreseeable to school officials that the song would cause a material and/or substantial disruption at school.

Applying this test, the court found that the song had created actual disruption at the school. Coach Wildmon, one of the coaches about whom the song was penned, first heard about it while teaching his class. His wife had learned and heard of the song and texted him from her cell phone. Upon receiving the text, the coach turned to three seniors sitting in his class and asked if they had heard the song. Replying affirmatively, one of the students played the song for him using his cell phone. The coach testified that he felt threatened by the lyrics threatening to kill him in the song and that his “teaching style had been adversely affected” due to his belief that now students suspected him of inappropriate behavior.

The court also found that disruption was foreseeable where a

public high school student’s song (1) that levies charges of serious sexual misconduct against two teachers using vulgar and threatening language and (2) is published on Facebook.com to at least 1,300 “friends,” many of whom are fellow students, and the unlimited internet audience on YouTube.com, would cause a material and substantial disruption at school.

Gregory R. Branch is an educational attorney in Orange County, California. If you feel that your child has been unconstitutionally disciplined for exercising their right to free speech, please contact Mr. Branch at gregorybranch@edrightsadvocate.com or at (714) 856-1166.

The intersection of religion, free speech, and anti-bullying efforts

The First Amendment guarantees that public school students have the right to free speech. It also gives them the right to practice their religion. But when does a student’s right to express his personal religious beliefs go too far and cross the line into bullying?

Read the rest of the excellent article on the intersection between the First Amendment and student speech here.

Can Emma Sullivan be disciplined?

 If you follow my writing, you know that recently I have developed a passion for discussing court cases that involve students using social media. It is an interesting frontier of the law and one which is begging for Supreme Court guidance. Without that, districts are muddling through, faced daily with decisions about whether particular student actions can be handled at the school level and attempting to get guidance from contradictory court decisions being handed down in various federal and state courts. So loyal readers, I ask you, can Emma Sullivan be disciplined by her school? If you are not familiar with Emma, read on. I will lay out the basic facts of her situation and you can apply what you have learned to make a determination.

Facts:  Emma Sullivan is now an eighteen year-old media sensation. Barely a week ago, she was an unknownKansasteenager who was visitingTopeka,Kansasas part of the Youth in Government program. Emma is a high school senior who is awaiting word from theUniversityofArkansasto see if she is accepted in the fall. Emma is also a Democrat who found herself being addressed by Governor Brownback, a Republican legislator who Emma felt had made excessive cuts to state programs, particularly education.

During Brownback’s address, Emma tweeted

Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot.

Unbeknownst to Emma, Brownback’s staff monitors all tweets, even ones sent out by an eighteen year-old seniors with only sixty Twitter followers. Upset by Emma’s tweet, Brownback staffers contacted Emma’s school, sending a screen captured picture of Emma’s post.

So, Tuesday morning Emma was summoned to the principal’s office to be, yes, you guessed, it disciplined by the administrator, Karl Karwitz. According to Emma, Mr. Karwitz “laid into” her, telling her that her behavior was “unacceptable and an embarassment.” He told her that she had created a huge controversy and how upset everyone was by what she had done. He futher expressed his upset that he was going to have to do “damage control.”

As a consequence for her behavior, Emma was told that she must write apology letters to all concerned for her behavior. an action which she originally reported that she was planning to take. Now though, with the media firestorm that has ensued, Emma appears to have changed her position on writing the letters, as they did not appear after the break, and she has expressed that she is no longer so sure she will comply.

So, can Emma be disciplined? Or, to frame the question differently, can the principal force Emma to write the letters or give further consequences for her failure to do so?

Analysis:  How should such a question by analyzed? Well, hopefully my readers are now versed in this type of analysis. In analyzing school speech issues, the relevant test is known as the Tinker standard. Tinker was a case in which students wore black arm bands to protestAmerica’s involvement in the Vietnam War. They were disciplined by the school, sued, and the case reached the Supreme Court.

There, the standard that has guided all subsequent k-12 school speech issues was formulated. Under Tinker, in order to silence or discipline for student expression, an administrator must show, based on evidence and not an “unsubstantiated fear or apprehension of disturbance,” that the student expression would lead to either (a) a substantial disruption of the school environment, or (b) an invasion of the rights of others. 

Applying this analysis to the facts currently at hand, it becomes clear that if this case goes to court (it currently has not) that the school distict and the administrator are unlikely to prevail. First, no actual disruption happened. The school did not experience any student disruption based on her comments. Second, it is highly unlikely that it will. In other cases I have discussed, I have shown that administrators need to have evidence of at least potential disruption. Here, based on the current facts, none is in evidence. Principal Karwitz, in his admonition delivered to Emma, did not point to upset to the student body, but rather to outside entities (the Governor’s office).

A further factor here is the nature of Emma’s speech. It is strictly political; it is the type of speech that has rightfully been given the Court’s strongest protection. With the facts at hand though, if it ever went to trial, counsel for district would surely argue Fraser, a case in which a high school student gave a sexual innuendo laced speech in favor of his high school friend’s candidacy for school office. Fraser argued that his speech was political, like Tinker, but the Court held that his vulgar speech during a school-sponsored event was not the “pure” political speech of Tinker.

In its Fraser opinion, the Court set up a balancing test, stating that the

freedom to advocate unpopular and controversial views in school and classrooms must be balanced against society’s countervailing interest in teaching students the boundaries of socially approvpriate behavior.

This distinction is important due to Emma’s choice of the tagline “#heblowsalot,” which could be argued to be sexual innuendo and vulgar. Here though, a court would likely side with Emma since, standing alone, it can be construed an non-sexual since the term has entered the common vernacular as meaning inferior quality. In Fraser, the sexual innuendos were many and flagrant.

A further issue here, although never really addressed by a court decision of which I’m aware, is that Emma is eighteen. An underlying theme, but one never stated, is that minors are not mature enough to handle full free speech rights. Here, Emma is an adult, and as such, should be afforded more latitude for speech.

So, if Emma’s case ever reached the court system, it is highly unlikely that Emma could be disciplined for her actions.

Gregory Branch is a teacher and attorney who practices in the area of educational law. He may be reached at gregorybranch@edrightsadvocate.com.

Free speech allowed if appropriate

We are seeing our First Amendment right to free speech redefined by the practices being carried out by our government. In Kansas, high school student Emma Sullivan, 18 years of age, has been ordered to write letters of apology by her school after sending out a tweet to her then-sixty in number followers that read “Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot.” The governor has someone on his staff monitoring Twitter for references to him, and this staffer informed the school about the negative tweet, whereupon the school took action.

Read the rest of this interesting article here.

Free speech suit for R.I.P. wearing students proceeds

 I posted an article on Examiner.com on November 19 in which I discussed a case where a federal court dismissed a suit in which students sought to sue the school district for suppression of their free speech rights because the school had not allowed them to wear American flag-themed shirts to school on Cinco De Mayo. The school district prevailed when the court, applying the Tinker standard, stated the school had enough evidence to form a reasonable suspicion that the wearing of the shirts might lead to disruption at the school.

In a separate case but on a similar set of facts, a sister court reached a different conclusion and is allowing a student suit against the district for a violation of his free speech rights to proceed. The two cases came down on exactly the same day. Bear in mind, this ruling does not mean the students here will ultimately prevail, only that they have put forth sufficient evidence to show that a genuine question exists to try before the court. Comparing these two cases provides a glimpse into how fine the distinctions can be that school administrators must make.

Case Facts:  In Kuhr v. Millard Public School District, a Millard South High School (MSHS) student, Julius Robinson, was killed by a known gang member. To memorialize him, his friend Dan Kuhr put together t-shirts that showed two pictures of his friend, one in his football uniform and one talking on the phone and smiling. Above these pictures were the words “Julius, RIP, 6-8-90, 6-15-08.” While testimony is contradictory as to whether Julius was in a gang, it is undisputed that he was friends with gang members and dressed the part. Both Dan and his younger brother and sister began wearing the shirt he had designed, as well as wrist bands memorializing their friend, to school.

The three siblings wore their shirts a number of days without any incident. Soon though, a teacher noticed Dan wearing the shirt. She had been trained that shirts bearing R.I.P. are quite typical for gang members. She notified the assistant principal about the shirt, and he called Dan from class. While in the office, Dan was told he must remove the shirt or turn it inside out to hide what was written upon it. Since Dan would not comply with either directive, he was sent home from school that day.

The reason given by the school for asking for asking Dan to remove the shirt was a fear of gang reprisals. According to the school principal, he had been told by a teacher that she had overheard a conversation between students where violence against the wearers was threatened.

Reasoning: The court ruled that this type of expression in school is ruled by the Tinker standard. In Tinker, the Supreme Court ruled that student do not shed their right to freedom of speech at the school house door. However, the rights of students are not the equivalent of the rights of adults. If a school can show that the speech is likely to disrupt school activities, then the speech can be suppressed. The court noted that the case closest to the facts here was Brown v. Cabell Cnty. Bd. of Educ. In Brown speech was suppressed by a school due to a fear of gang violence.  Applying Brown, the court noted

“The ultimate issue in this case is whether the shirts were likely to interfere with school activities, including, but not limited to, the possibility of threats or acts of gang violence.”

In a summary judgment case such as this, for the court to allow the suit proceed, a party must show that a reasonable jury could conclude that the district lacked a reasonable forecast that school disruption could occur. The court appeared to rely heavily in making its ruling that the three siblings had worn the shirts and bracelets on a number of occasions prior to their being noticed by the teacher and no violence or disruption had occurred on campus. The court stated that based on these facts, a reasonable jury could find that the district administrators possessed no more than “an undifferentiated and remote apprehension of a disturbance.”

School suspension for wearning American flag upheld by federal court

 A Californiafederal district judge for the Northern District of California granted a high school assistant principal’s motion for summary judgment in a case where the school administrator had barred certain students from wearing American flags to school on Cinco de Mayo. In Dariano v. Morgan Hill Unified School District, U.S. District Chief Judge, James Ware, denied the students’ claims that their right to freedom of speech had been violated as well as their rights to equal protection and due process.

Rest of article here.

Supreme Court’s help sought to clarify student rights to free speech in off-campus online speech

 Check out my latest Examiner.com article on how national school administrative organizations are requesting that the Supreme Court take up a student free speech case to clarify the amount of rights students have to speak their mind online when their speech often impacts what happens at school.

Article

Tenured teacher may lose position over a Facebook post

Through my Examiner.com articles I have been highlighting the struggle that education is facing with the advent of social media. This media is impacting students, teachers, and administrators. Here is another story that highlights the tension existing as schools struggle to balance free speech with the necessity of effectively regulating their education institutions.

An elementary school teacher fromNew Jerseyhas been terminated from her tenured position due to a post on her Facebook page in which she referred to her first grade students as “future criminals.”

Administrative Law Judge Ellen Bass held that the district’s need to efficiently operate its schools outweighed school teacher Jennifer O’Brien’s right to free speech. “In a public education setting, thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools,” she wrote.

The judge was also influenced by what she saw as O’Brien’s lack of remorse for her actions. She noted in her decision that O’Brien did not express genuine remorse at her hearing, stating that Bass had left the hearing with the impression that “O’Brien remained somewhat befuddled by the commotion she had created.”

The ruling allows O’Brien to resume her teaching career elsewhere, just not Patterson, New Jersey, the community in which she was teaching-provided that she undergo sensitivity training.

This ruling is not final though since O’Brien’s lawyer has already declared his intention of appealing the ruling and before even that, the state education commissioner has 45 days to accept, reject, or modify the judge’s ruling.

For further details on this story, please go to the link below.
www.legalclips.nsba.org/?p=10160