Taylor Bell v. Itawamba County School Board

Case: 12-60264 Document: 00512867938 Page: 1 Date Filed: 12/12/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 12, 2014

No. 12-60264

Lyle W. Cayce

Clerk

TAYLOR BELL; DORA BELL, individually and as mother of Taylor Bell,

Plaintiffs - Appellants

v.

ITAWAMBA COUNTY SCHOOL BOARD; TERESA MCNEECE,

Superintendent of Education for Itawamba County, individually and in her

official capacity; TRAE WIYGUL, Principal of Itawamba Agricultural High

School, individually and in his official capacity,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

This appeal raises a First Amendment challenge to a public high school

student=s suspension and transfer to alternative school for his off-campus

posting on the Internet of a rap song criticizing, with vulgar and violent lyrics,

two named male athletic coaches for sexually harassing female students at his

school. The aspiring student rapper, Taylor Bell, composed the song off

campus, recorded it at a professional studio unaffiliated with the school, and

posted it on his Facebook page and on YouTube using his personal computer

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No. 12-60264

while at home. Bell had never before been charged with a serious school

disciplinary violation. After the disciplinary action was imposed and affirmed

by the Itawamba County School Board, Bell and his mother, Dora Bell, sued

the School Board, its Superintendent, and the school=s Principal, for violation

of Bell=s freedom of speech under the First Amendment and Dora Bell=s

substantive-due-process right to parental authority under the Fourteenth

Amendment. Upon cross-motions for summary judgment, the district court

rendered summary judgment for the School Board and its officials. The Bells

appealed.

We reverse the district court=s judgment in favor of the School Board

against Taylor Bell and render summary judgment against the School Board

in favor of Taylor Bell, awarding him nominal damages as prayed for, and

other relief, for the Board=s violation of his First Amendment right to freedom

of speech. The summary-judgment evidence and materials establish that Bell

composed and recorded his rap song completely off campus; that he used his

home computer to post it on the Internet during non-school hours; and that the

School Board did not demonstrate that Bell=s song caused a substantial

disruption of school work or discipline, or that school officials reasonably could

have forecasted such a disruption. Otherwise, the district court=s grant of

summary judgment in favor of Defendants-Appellees against Dora Bell is

affirmed, as well as the district court=s summary judgment for the individual

school officials. 1

1The Bells waived their appeal of the district court=s ruling on Dora Bell=s Fourteenth

Amendment substantive-due-process claim by failing to raise that issue in their initial brief.

We therefore affirm the district court=s ruling without addressing the merits of that claim.

For the same reason, we affirm the district court=s alternative holding that qualified

immunity bars Taylor Bell=s suit against the individual defendants. Therefore, we consider

only Taylor Bell=s First Amendment claim against the School Board.

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I.

A.

In December 2010, Taylor Bell was an eighteen-year-old senior at

Itawamba Agricultural High School with no record of any disciplinary problem

aside from a single in-school suspension for tardiness. Bell is an aspiring rap 2

musician, has written lyrics and music since he was a young boy, and began

recording and seriously pursuing music in his early teens. 3 In this respect,

Bell considers himself an Aartist.@ Bell testified that several 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 also contains affidavits from female students stating

that they informed Bell of this misconduct by Wildmon and Rainey.

According to these affidavits, Wildmon told one of Bell=s classmates, R.M., 4

that she had a Abig butt@ and that he would date her if she were older. She

also stated that Wildmon had looked down her shirt, inappropriately touched

2 ARap has been defined as a >style of black American popular music consisting of

improvised rhymes performed to a rhythmic accompaniment.=@ Campbell v. Acuff-Rose

Music, Inc.,510 U.S. 569, 572, n.1 (1994) (quoting The Norton/Grove Concise Encyclopedia of

Music 613 (1988)). According to scholars, the genre Aderives from oral and literary

traditions of the Black community.@ Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics

as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1, 22 (2007). Today, rap music

is not only a musical form with its own unique artistic conventions, id. at 20, but also a multi-

billion-dollar commercial industry. See, e.g., Julie Watson, Rapper=s Delight: A Billion-

Dollar Industry, Forbes.com (Feb. 18, 2004),

http://www.forbes.com/2004/02/18/cx_jw_0218hiphop.html

3 Bell testified that he regularly records music in a studio (Aonce a week@ if possible).

4 As the students are not parties to this suit and were minors at the time these events

took place, we use only their initials to protect their privacy.

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her, and told her that she was Aone of the cutest black female students@ at

Itawamba. Another student, D.S., told Bell that she witnessed these

incidents between Wildmon and R.M.; in addition, D.S. informed Bell that

Rainey had Arubbed [her] ears at school without her permission, and [that she]

had to tell him to stop.@ Yet another student, S.S., told Bell that Rainey

commented to her that he thought she had A>messed= with some nasty people@

and suggested that he otherwise would have, in S.S.=s words, Aturn[ed] [her]

back >straight= from being >gay.=@ A fourth student, K.G., told Bell that Rainey

approached her in the gym and said, Adamn baby, you are sexy.@

Bell admitted that he did not report these complaints to school

authorities, but he explained that, in his view, the school officials generally

ignored complaints by students about the conduct of teachers and coaches.

During the Christmas holidays, while school was not in session, Bell composed

and recorded a rap song about the female students= complaints at a

professional recording studio unaffiliated with the school. Bell did not use

any school resources in creating or recording the song. According to Bell, he

believed that 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 5 accused Wildmon of telling students that they are Asexy@ and

looking down female students= shirts, and it stated that he Abetter watch [his]

back,@ and that Awhite 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

5 Bell=s Facebook page labels the song AP.S. Koaches,@ but Bell=s complaint identifies

the song=s title as APSK The Truth Needs to be Told.@

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repeated lines to the effect of Amiddle 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 ABobby 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 Arubbing black

girls= ears in the gym.@ The song=s lyrics in full were as follows: 6

Let me tell you a little story about these Itawamba coaches

Dirty ass niggas like some fucking coacha roaches

Started fucking with the whites and now they fucking with the

blacks

That pussy ass nigga Wildmon got me turned up the fucking max. 7

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 the city 8

The reason he fucking around cause his wife ain=t got no titties

This nigga 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 9

What the hell was they thinking when they hired Mr. Rainey

6 The record contains an audio recording of the song lyrics and three different

transcripts of the recording : (1) a transcript submitted by the School Board in its response

to Bell=s preliminary-injunction motion, (2) a transcript submitted by Bell at the preliminary-

injunction hearing, and (3) a transcript submitted by the School Board at the preliminary-

injunction hearing. Where appropriate, spelling and typography are standardized and the

lyrics are harmonized as between the recorded and transcribed versions of the song entered

into the district court record. Where the lyrics differ between the three different

transcriptions in the record, the differences are noted. However, none of the lyrical

differences is dispositive to the outcome of this case.

7 Or Aturnin= to a fucking mess.@

8 Or Adaw-city.@

9 Or ASo the union league is gone [sic] hurt.@

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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 10

Talking about you gangsta / Drive your mama=s PT Cruiser 11

Run up on T-Bizzle 12 / I=m going to hit you with my rueger 13

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 nigga

30 years old fucking with students at the school

Hahahah You=s a lame and it=s a damn shame

Instead you was lame, eat shit, the whole school got a ring

mutherfucker. 14

Heard you textin= 15 number 25 16 / 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

10 Or Aas bad as hell.@

11 Or Atry your mama beat crews up.@

12 AT-Bizzle@ refers to Taylor Bell.

13 Or Aruler.@ The transcript of the lyrics submitted by Bell at the preliminary-

injunction hearing specifies the lyric is Arueger.@ However, as noted supra, our holding does

not pivot on the applicability of one term or the other.

14Or AYou so lame it=s a damn shame/Instead you wadn=t shit, the whle team gotta

reign Mother Fucker.@

15 Or Akissing.@

16 ANumber 25@ refers to one of the female students.

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You fucking with the wrong one / Going to get a pistol down your

mouth/Pow 17

OMG 18 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 19

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 Cody

Wildemon 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.

In the first few days of January 2011, 20 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 Afriends.@ 21

17 Or Aboww@ according to the transcript of lyrics provided by Bell at the preliminary

injunction hearing.

18 A[O]h my God.@

19 Or Acause you pimpin can=t read.@

20Bell testified at the preliminary-injunction hearing that he posted the song Aon the

first Wednesday in January,@ which would be January 5, but Bell=s brief in support of his

preliminary-injunction motion states that the song was posted on January 3.

21 Although a screen shot of Bell=s Facebook page contained in the record indicates he

had approximately 1,380 Afriends,@ there is no evidence of how many of his Afriends@ were

current students at Itawamba. In addition, the evidence does not reflect how many Afriends@

listened to the song. The dissent argues that three of the Afriends@ shown in a screen shot

of Bell=s Facebook page were Bell=s Afellow students.@ However, at most, the screen shot

shows only that three Afriends@ were a part of the Itawamba Agricultural High School

network, and does not evince whether those individuals were students currently enrolled at

the high school, former students who had graduated or transferred but remained on the

network, or individuals who were part of the Itawamba network for some other reason.

Although comments directly below Bell=s Facebook posting indicate that some individuals

listened to the song, there is no evidence whether those individuals were fellow students.

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The Facebook website was blocked on school computers. Although any of

Bell=s Facebook Afriends@ potentially could use a cellphone to access the song

on Facebook, school regulations prohibited students from bringing cellphones

to school.

Upon returning to school after the Christmas holidays, Bell testified that

he never encouraged anyone at schoolCstudents or staffCto listen to the song.

He further testified that he never played the song at school. No evidence was

offered by the School Board to the contrary.

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.

The next day, Wiygul, McNeece, and the school district=s attorney,

Michele Floyd, questioned Bell about the song and its accusations.

According to McNeece, she asked whether Bell meant that the teachers were

having sexual relations with students, to which Bell responded that the lyrics

meant the teachers were Amessing with kids@Cnot having sexual relations with

them. Bell testified, somewhat differently, that he told the school officials

that Aeverything [he] said in the song was true.@ According to Bell, the school

Moreover, as discussed at greater length infra, an examination of those Facebook comments

(e.g., AHey, don=t forget me when you=re famous@ and ALol. . . Mane Im tellin you cuz . . . been

tellin you since we was little . . . keep fuckin with it man you got all the talent in the world .

. .@) and Bell=s response to them (e.g., Athanks mane . . . I JUST NEED A BIG BREAK

THROUGH . . . no wut I mean??@) undermines the dissent=s contention that the song was

viewed or reasonably could have been viewed as a genuine threat of violence by Bell against

the coaches rather than the artistic expression of an aspiring rap musician seeking fame and

fortune.

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officials never suggested that Wildmon or Rainey felt threatened; instead, it

seemed to Bell, the problem was that Wildmon felt as though Ahis name had

been slandered.@ Bell testified that the officials never said that school had

been disrupted as a result of the song. After speaking with McNeece and the

other officials, Bell was sent home for the rest of that day, which was a Friday.

Bell testified that he was not given a clear answer as to the specific reason why

he was being sent home that day.

Due to snow, the school was closed until Friday of the following week.

During that time, Bell created a more polished version of the song, 22 which

included various sound effects, a slideshow, 23 and a brief monologue at the

conclusion. In this monologue, Bell explained the genesis of his song:

A lot of people been asking me lately you know what was my

reasoning behind creating P.S. Koaches. It=s . . . something that=s

been going on . . . for a long time [] that I just felt like I needed to

address. I=m an artist . . . I speak real life experience. . . . The way

I look at it, one day, I=m going to have a child. If something like

this was going on with my child . . . it=d be >4:30.= 24 . . . That=s just

how it is . . .

Bell then uploaded the final version of the song to YouTube from his home

computer before classes resumed. Bell later explained that he created and

posted this YouTube version of the song to help people, including school

officials, Amore clearly understand exactly what [he] was saying@ in the song.

When school resumed on the following Friday, Bell returned to school.

He testified that he could discern no disruption due to the song, nor did he tell

22 He explained that the version initially posted to Facebook had been a Araw@ and

Aunfinished@ copy of the song.

23 The record lacks details about the precise contents of the slideshow.

24 Bell explained that A4:30@ means Ait=s over@ or AI=m leaving.@

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anyone at schoolCstudents or staffCto listen to the song. However, around

mid-day on that date, 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.

B.

At the disciplinary/due process hearing before the school=s Disciplinary

Committee on January 26, 2011, the school district=s attorney, Michele Floyd,

stated that the purpose of the hearing was to determine whether Bell had

Athreaten[ed], intimidat[ed], and/or harass[ed] one or more school teachers.@ 25

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 the rap song in response to the coaches=

inappropriate behavior toward female students. He testified that he did not

believe that telling the school authorities about the coaches= misconduct would

have accomplished anything because school officials had failed to respond to

25 During the hearing, Bell=s counsel requested information about the initial decision

by school officials to suspend Bell and what the basis for that decision had been. Floyd

responded that those issues were not the purpose of the hearing, explaining again that the

hearing=s purpose was to determine if Bell had harassed, intimidated, or threatened teachers

through his off-campus posting of his song on the Internet. In addition, when Bell=s attorney

sought to bring attention to affidavits from the female students corroborating the song=s

accusations, Floyd stated that the Committee would not consider at the proceeding the truth

or merits of the female students= allegations that the coaches sexually harassed them.

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other students= complaints in the past. 26 During the hearing, Bell presented

letters from female students corroborating the allegations of the coaches=

misconduct. The Committee stated that 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.

The Committee also questioned 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 27 and to increase awareness of the

situation. Bell explained that the lyrics were not intended to intimidate,

threaten, or harass Wildmon or Rainey. However, he indicated that 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 childrenCnot that Bell would react violently. 28 Bell explained that he

uploaded the remastered version of the song to YouTube because he wanted

people to Aclearly understand@ his intentions with respect to the song and that

26 His testimony was unclear whether he meant that school officials failed to respond

to student complaints generally or to complaints specifically concerning the allegations made

in the song.

27 The dissent concludes that Bell=s statement that he was writing about real-

experiences is an indication that Bell=s rap was not rhetorical but instead constituted a real

threat of violence. To the contrary, when Bell stated that he was writing about real-life

experiences, he was referring to the real-life experience of male high school coaches sexually

harassing female students.

28 Specifically, Bell stated: AI didn=t say that I was going to do that. . . . I=m from the

country. And you know, I know how people are. . . . Eventually . . . somebody=s parents . . .

or their brother . . . or their big sister or somebody might get word . . . I was just foreshadowing

something that might happen. . . . I wasn=t saying that I was going to do that.@ One of the

Committee members indicated that she agreed with Bell, stating A. . . it sound like to me you

were saying that if they don=t stop what they=re doing then a parent kinda is gonna do that,

not really him [indicating Bell].@

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the YouTube version was more targeted at record labels than the Facebook

version. He also explained that he did not tell anyone to listen to the song at

school.

At the disciplinary/due process hearing, no evidence was presented that

the song had caused or had been forecasted to cause a material or substantial

disruption to the school=s work or discipline. In addition, there was no

evidence presented indicating that any student or staff had listened to the song

on the school campus, aside from the single instance when Wildmon had a

student play the song for him on his cellphone in violation of school rules.

Neither of the coaches named in the song attended or testified at the hearing,

and no evidence was presented at the hearing that the coaches themselves

perceived the song as an actual threat or disruption.

At the very end of the hearing, one of the Committee members provided

the following admonition to Bell: AI would say censor your material. . . . Because

you are good [at rapping], but everybody doesn=t really listen to that kind of

stuff. So, if you want to get [] your message out to everybody, make it where

everybody will listen to it. . . . You know what I=m saying? Censor that stuff.

Don=t put all those bad words in it. . . . The bad words ain=t making it better. .

. Sometimes you can make emotions with big words, not bad words. You know

what I=m saying? . . . Big words, not bad words. Think about that when you

write your next piece.@ 29

The dissent is mistaken in asserting that one member of the Committee

29

Aexplain[ed] there would have been no problem with the rap recording or its vulgar language

if it had not included threats against school employees.@ It is true that one Committee

member indicated that Bell should not have Aput names@ in the rap (noting that she does not

use real names when she writes poetry), from which the dissent apparently derives its

misinterpretation. However, that member subsequently admonished Bell to use Abig words,

not bad words@ in his raps and to Acensor that stuff,@ thus providing Bell poetic or artistic

advice. That Committee member did not characterize the statements in Bell=s rap as

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The next day, Floyd sent Bell=s mother a letter setting forth the

Committee=s decision 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. The letter stated that the Committee had concluded that whether Bell=s

song constituted a Athreat to school district officials was vague.@ 30 But the

Committee did find that the song harassed and intimidated the coaches in

violation of Itawamba School Board policy 31 and unspecified state law.

The School Board affirmed the Disciplinary Committee=s decision on

February 7, 2011, which was memorialized in a letter sent to Dora Bell from

Floyd on February 11, 2011. In that letter, Floyd stated: AAs you are aware,

[the Board] determined that Taylor Bell did threaten, harass and intimidate

school employees in violation of School Board policy and Mississippi State

Law.@ 32 The Board did not assign any additional reasons for its decision.

threatening.

30Specifically, the letter stated: ABased on the testimony given at the due process

hearing on January 26, 2011, the Discipline Committee determined that the issue of whether

or not lyrics published by Taylor Bell constituted threats to school district teachers was

vague; however, they determined that the publication of those lyrics did constitute

harassment and intimidation of two school district teachers, which is a violation of School

Board Policy and state law.@ The proceedings before the Committee were audio-recorded

but were not transcribed; only a sound recording of it is in the record.

The School District=s ADisciplineBAdministrative Policy@ prohibits A[h]arassment,

31

intimidation, or threatening other students and/or teachers.@

32 Specifically, Floyd=s letter stated: AAs you are aware, on February 7, 2011, the

Itawamba County Board of Education determined that Taylor Bell did threaten, harass and

intimidate school employees in violation of School Board policy and Mississippi State Law.

As a result, the recommendations of the disciplinary hearing were upheld by the Board of

Education.@ The Board did not cite the state law to which it referred; nor has it done so in

its litigation documents. Floyd=s letter does not explain the difference between the

Committee=s finding that the issue of whether Bell=s lyrics constituted a threat was Avague@

and the School Board=s finding that Bell had Athreatened, intimidated, and harassed@ the

teachers. The record is unclear regarding the exact evidence presented to the School Board.

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C.

Taylor and Dora Bell filed this civil action under 42 U.S.C. ' 1983 on

February 24, 2011, in the United States District Court for the Northern

District of Mississippi against the Itawamba County School Board,

Superintendent McNeece (individually and in her official capacity), and

Principal Wiygul (individually and in his official capacity), alleging that the

defendants violated Taylor Bell=s First Amendment right to freedom of speech

by imposing school discipline on Bell for his off-campus composition, recording

and Internet-posting of his rap song. 33 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.

On March 10, 2011, the district court held a hearing on the preliminary-

injunction motion. At the hearing, a number of different witnesses testified,

including the two coaches named in the song. Rainey testified that he had not

heard the song and felt it was Ajust a rap,@ not to be taken seriously, and that

he felt that if he Alet it go, it [would] probably just die down.@ However, he

stated that the song had Aaffected@ the way he Atalk[ed] to kids,@ leading him

to avoid interactions with students that might be interpreted as being

Based on the testimony of school officials at the preliminary-injunction hearing, the Board=s

decision apparently was based on the same audio-recording of Bell=s song heard by the

Disciplinary Committee.

33 The complaint also alleged that defendants violated Dora Bell=s Fourteenth

Amendment substantive-due-process right to control her child=s upbringing. As noted

supra, the district court granted summary judgment for the defendants on this claim, and

the Bells have not appealed that determination.

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inappropriate. For example, he indicated that he felt the song had affected

his ability to act like a Aparent figure@ to students. He also testified that

students had begun spending more time in the gym since the posting of the

song, but he could not confirm this was a result of Bell=s song. Rainey further

testified that most of the talk amongst students has been about Bell=s

suspension and transfer to alternative school.

Wildmon testified that the song caused him to be more cautious around

students and to avoid the appearance that he was behaving inappropriately

toward them. 34 He further testified that students around him Aseem[ed] to

act normal@ after the song was published to the Internet. Wildmon said that

he took the lyrics Aliterally@ and that he felt Ascared@ after hearing the song

since Ayou never know in today=s society . . . what somebody means, how they

mean it.@ In this regard, Wildmon testified that, after hearing the song, he

would not let his players leave basketball games until after he was in his

vehicle. In addition, Wildmon denied ever texting Aa girl, like No. 25, on the

basketball team,@ as referenced in the song=s lyrics. Otherwise, there is no

indication that either party questioned the coaches about the truth or falsity

of the female students= allegations.

At the conclusion of the hearing, the district court denied the motion for

the preliminary injunction as moot because Bell had only one day of alternative

school remaining. Thereafter, following the parties= filing of cross-motions for

summary judgment, the district court 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. 503 (1969), the song=s lyrics

34 For example, Wildmon stated: AI tried to make sure, you know, if I=m teaching, and

if I=m scanning the classroom, that I don=t look in one area too long. I don=t want to be

accused of, you know, staring at a girl or anything of that matter.@

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Ain fact caused a material and/or substantial disruption at school and that it

was reasonably foreseeable to school officials the song would cause such a

disruption.@ Specifically, the court stated that Wildmon=s and Rainey=s

testimony that the song Aadversely affected@ their teaching styles constituted

an Aactual disruption@ to school activities. The court also concluded that it

was Areasonably foreseeable@ that the song, which Alevies 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.@ The Bells timely appealed.

II.

We review a district court=s grant of summary judgment de novo,

applying the same standard as the district court. See Mesa v. Prejean, 543

F.3d 264, 269 (5th Cir. 2008). A[S]ummary 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.=@ Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting

Fed. R. Civ. P. 56(c)). AWhen parties file cross-motions for summary

judgment, >we review each party=s motion independently, viewing the evidence

and inferences in the light most favorable to the nonmoving party.=@ Duval v.

Northern Assur. Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013) (quoting Ford

Moto Co. v. Tex. Dep=t of Transp., 264 F.3d 493, 498 (5th Cir. 2001)).

III.

The principal issue presented by this case is whether a public high school

violated the First Amendment by punishing a student for his off-campus

speech, viz., his rap song posted on the Internet that criticized two male

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coaches for their improper conduct toward minor female students. This case

does not involve speech that took place on school property or during a school-

approved event off campus. Nevertheless, the district court, interpreting

Tinker v. Des Moines Independent Community School District as applying

directly to students= off-campus speech, as well as their on-campus speech, held

that the School Board had authority to regulate and punish Bell=s speech

because the evidence established that his rap song had Ain fact@ substantially

disrupted the school=s work and discipline and that it was Areasonably

foreseeable@ that the song would cause such a disruption. 859 F. Supp. 2d

834, 840 (N.D. Miss. 2012). We reverse the district court=s application of

Tinker as legally incorrect, and conclude that Tinker could not afford the School

Board a defense in this case because the summary-judgment evidence and

materials do not support the conclusion that a material and substantial

disruption at school actually occurred or reasonably could have been

forecasted.

Contrary to the district court=s conclusions, id. at 837B38, the Supreme

Court=s Astudent-speech@ cases, including Tinker, do not address students=

speech that occurs off campus and not at a school-approved event. The Court

has not decided whether, or, if so, under what circumstances, a public school

may regulate students= online, off-campus speech, and it is not necessary or

appropriate for us to anticipate such a decision here. Even if Tinker were

applicable to the instant case, the evidence does not support the conclusion, as

required by Tinker, that Bell=s Internet-posted song substantially disrupted

the school=s work and discipline or that school officials reasonably could have

forecasted that it would do so. Moreover, we reject the School Board=s

alternative argument that the plainly rhetorical use of violent language

contained in Bell=s song falls within this court=s narrow holding in Ponce v.

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Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007), that student

speech threatening a Columbine-style mass school shooting was not protected

by the First Amendment. Furthermore, in light of the rap=s factual context,

its lyrics= conditional nature, and the reactions of its listeners, we likewise

reject the argument that Bell=s rap song was excepted from First Amendment

protections because it constituted a Atrue threat.@

A.

AThat courts should not interfere with the day-to-day operations of

schools is a platitudinous but eminently sound maxim which this court has

reaffirmed on many occasions.@ Shanley v. Northeast Indep. Sch. Dist., 462

F.2d 960, 967 (5th Cir. 1972). Nevertheless, this court Alaid to rest@ more than

a half century ago Athe notion that state authorities could subject students at

public-supported educational institutions to whatever conditions the state

wished.@ See id. (citing Dixon v. Ala. State Bd. of Educ., 294 F.2d 150 (5th

Cir. 1961)). AAnd of paramount importance is the constitutional imperative

that school boards abide constitutional precepts: >The Fourteenth Amendment,

as now applied to the States, protects the citizen against the State itself and

all of its creaturesCBoards of Education not excepted.=@ Id. (citing West

Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). Thus, A[t]he

authority possessed by the State to prescribe and enforce standards of conduct

in its schools, although concededly very broad, must be exercised consistently

with constitutional safeguards,@ including the dictates of the First

Amendment. See Goss v. Lopez, 419 U.S. 565, 575 (1975).

Because speech is often provocative and challenging, and may strike at

prejudices and preconceptions and have profoundly unsettling effects as it

presses for the acceptance of an idea or cause, the First Amendment protects

speech against restriction or punishment by the government. Cox v.

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Lousiana, 379 U.S. 536 (1965); see also Texas v. Johnson, 491 U.S. 397, 408B10,

414 (1989); Hustler Magazine v. Falwell, 485 U.S. 46, 54B57 (1988); Cohen v.

California, 403 U.S. 15 (1971). In Tinker, the Supreme Court considered

whether the First Amendment=s protections against government censorship

apply to student speech inside public schools. The Court recognized that

students do not Ashed their constitutional rights to freedom of speech or

expression at the schoolhouse gate,@ but also observed that those rights must

be calibrated Ain light of the special characteristics of the school environment.@

393 U.S. at 506B07. To reconcile these competing interests, the Court

fashioned a rule that has become the touchstone for assessing the scope of

students= on-campus First Amendment rights ever since: while on campus, a

student is free to Aexpress 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.@ Id. at 513 (quoting Burnside v.

Byars, 363 F.2d 744, 749 (5th Cir. 1966)). However, speech by the student

that Amaterially disrupts classwork or involves substantial disorder or

invasion of the rights of others is, of course, not immunized by the

constitutional guarantee of freedom of speech.@ Id. at 513.

Therefore, under Tinker, school officials may prohibit student speech and

expression upon showing Afacts which might reasonably have led school

authorities to forecast [that the proscribed speech would cause] substantial

disruption of or material interference with school activities.@ Id. at 514.

School officials Amust 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.@ Id. at 509. It is a school=s

burden to prove that its suppression of student speech conforms with this

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governing standard. 35 Id. at 511B14; see also Shanley, 462 F.2d at 969 (AWhen

the constitutionality of a school regulation is questioned, it is settled law that

the burden of justifying the regulation falls upon the school board.@).

This court has further elaborated on Tinker=s substantial-disruption

standard. AAlthough 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.@ A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 221 (5th Cir.

2009). Further, school officials Amust 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.=@ Id. at 221-

22 (quoting Butts v. Dallas Indep. Sch. Dist., 436 F.2d 728, 731 (5th Cir.

1971)); see also Butts, 436 F.2d at 732 (A[T]here must be some inquiry, and

establishment of substantial fact, to buttress the determination.@); Shanley,

462 F.2d at 970 (A[T]he board cannot rely on ipse dixit to demonstrate the

>material and substantial= interference with school discipline.@).

Since Tinker, 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, Bethel Sch. Dist. No. 403 v. Fraser, 478

U.S. 675, 685 (1986), if it is school-sponsored and the restriction is Areasonably

35 AIn order for the State in the person of school officials to justify prohibition of a

particular expression of opinion, it must be able to show that its action was caused by

something more than a mere desire to avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint. Certainly where there is no finding and no showing

that engaging in the forbidden conduct would >materially and substantially interfere with the

requirements of appropriate discipline in the operation of the school,= the prohibition cannot

be sustained.@ Id. at 509 (citing Burnside, 363 F.2d at 749).

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related to legitimate pedagogical concerns,@ Hazelwood Sch. Dist. v. Kuhlmeier,

484 U.S. 260, 273 (1988), or if it is reasonably viewed as promoting the use of

illegal drugs, Morse v. Frederick, 551 U.S. 393, 403 (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. Moreover,

members of the Court have taken great pains to emphasize that these

exceptions to the Tinker Asubstantial-disruption@ test are narrowly confined

and do not provide school officials with broad authority to invoke the Aspecial

characteristics of the school environment@ in order to circumvent their burden

of satisfying the Tinker test in factual scenarios that do not fit within the

exceptions to Tinker established by Fraser, Hazelwood, and Morse. See, e.g.,

Morse, 551 U.S. at 422B23 (Alito, J., concurring) (AI join the opinion of the Court

on the understanding that (1) it goes no further than to hold that a public

school may restrict speech that a reasonable observer would interpret as

advocating illegal drug use and (2) it provides no support for any restriction of

speech that can plausibly be interpreted as commenting on any political or

social issue, including speech on issues such as >the wisdom of the war on drugs

or of legalizing marijuana for medicinal use.=@) (internal citation omitted).

Contrary to the district court=s conclusion, 36 the Supreme Court in

Tinker did not hold that the Asubstantial-disruption@ test applies to off-campus

speech. Instead, when the Court stated that, A[a] student=s rights . . . do not

embrace merely the classroom hours@ and that, Aconduct by the student, in

class or out of it, which . . . materially disrupts . . . is, of course, not immunized

36 The district court erroneously concluded that Athe U.S. Supreme Court in Tinker

specifically ruled that off-campus conduct causing material or substantial disruption at

school can be regulated by the school.@ See Bell, 859 F. Supp.2d at 837B38.

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by the constitutional guarantee of freedom of speech[,]@ Tinker, 393 U.S. at

512B13, 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, AWhen 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 like the conflict in

Vietnam, 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.@ Id. (internal citation omitted).

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. 37 Rather, the Court meant that the governing analysis would apply

Ain class or out of@ the classroom while the student is on campus during

37 The dissent erroneously contends that Atechnological developments,@ especially the

Internet, have Arendered the distinction [between on- and off-campus speech] obsolete.@

Although we certainly acknowledge that the Internet has yielded previously uncontemplated

factual scenarios that pose difficult questions, it is not our place to anticipate that the

Supreme Court will hold that the Internet has vitiated the distinction between on- and off-

campus student speech, thus expanding the authority of school officials to regulate a

student=s speech when he or she is at home during non-school hours. Accord Morse, 551 U.S.

at 424 (Alito, J., concurring) (AIt is a dangerous fiction to pretend that parents simply delegate

their authorityBincluding their authority to determine what their children may say and

hearBto public school authorities.@); Shanley, 462 F.2d at 964 (AIt should have come as a shock

to the parents of five high school seniors . . . that their elected school board had assumed

suzerainty over their children before and after school, off school grounds, and with regard to

their children=s rights of expressing their thoughts. We trust that it will come as no shock

whatsoever to the school board that their assumption of authority is an unconstitutional

usurpation of the First Amendment.@). Further, it is especially inappropriate for us to

pronounce such a consequential rule in the present case, where the evidence does not support

a conclusion that the speech has caused, or reasonably could have been forecasted to cause,

a substantial disruption of the school=s work or discipline.

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authorized hours. The Court=s subsequent student speech cases make this

distinction clear. See Hazelwood, 484 U.S. at 266. 38

38 A number of circuit courts have dealt with the question of Tinker=s reach beyond

the schoolyard. The Second, Fourth, and Eighth Circuits have concluded that Tinker

applies to off-campus speech in certain circumstances. See, e.g., Doninger v. Niehoff, 527

F.3d 41 (2d Cir. 2008) (student disqualified from running for class secretary after posting a

vulgar and misleading message about the supposed cancellation of an upcoming school event

on a web log from home); Kowalski v. Berkeley County Schs., 652 F.3d 565 (4th Cir. 2011)

(student suspended for creating and posting to a MySpace webpage that was largely

dedicated to ridiculing a fellow student); S.J.W. v. Lee=s Summit RB7 Sch. Dist., 696 F.3d 771

(8th Cir. 2012) (students suspended for creating website with offensive and racist comments

discussing fights at their school and mocking black students, as well as sexually explicit and

degrading comments about particular female classmates). These circuits have imposed

their own unique threshold tests before applying Tinker to speech that originates off campus.

For example, the Eighth Circuit requires that it be Areasonably foreseeable that the speech

will reach the school community,@ S.J.W., 696 F.3d at 777, while the Fourth Circuit requires

that the speech have a sufficient Anexus@ to the school. Kowalski, 652 F.3d at 573.

This court, along with the Third Circuit, has left open the question of whether the

Tinker Asubstantial-disruption@ test can apply to off-campus speech. In J.S. ex rel. Snyder

v. Blue Mountain Sch. Dist., 650 F.3d 915, 926, 930 (3d Cir. 2011) (en banc), the Third Circuit

assumed, without deciding, that Tinker applied to a student=s creation of a parody MySpace

profile mocking the school principal, but held that it was not reasonably foreseeable that the

speech would create a substantial disruption. In a separate concurrence, five judges

expressed their position that Tinker does not apply to off-campus speech and that Athe First

Amendment protects students engaging in off-campus speech to the same extent it protects

speech by citizens in the community at large.@ Id. at 936 (Smith, C.J., concurring). In

another Third Circuit en banc case decided the same day as Snyder, and also involving a

principal parody profile, the school district did Anot dispute the district court=s finding that

its punishment of [the student] was not appropriate under Tinker.@ Layshock v. Hermitage

Sch. Dist., 650 F.3d 205, 216 (3d Cir. 2011) (en banc). The school district relied instead on

Fraser. Id. But the court went on to note that Fraser did not allow the school Ato punish

[the student] for expressive conduct which occurred outside of the school context.@ Id. at 219.

In Porter v. Ascension Parish School Board, this court similarly left open the question of

whether Tinker applied to off-campus student speech. 393 F.3d 608, 615B16 n.22 (5th Cir.

2004) (student=s sketch depicting violent siege on school was speech protected by the First

Amendment and not Aon-campus@ speech subject to school regulation, where student had

completed drawing in his home, stored it for two years, and never intended to bring it to

campus, but rather stored it in closet where it remained until, by chance, it was unknowingly

taken to school by his brother; but principal was not objectively unreasonable and therefore

entitled to qualified immunity and plaintiff=s claim against school officials in their official

capacity was waived because plaintiff failed to brief the issue).

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In the instant case, the School Board may not assert Tinker as a defense

because, even assuming arguendo that the Tinker Asubstantial-disruption@ test

could be applied to a student=s off-campus speech, 39 the summary-judgment

39 The dissent erroneously contends that this court=s decisions in Sullivan v. Houston

Independent School District, 475 F.2d 1071 (5th Cir. 1973), and Porter v. Ascension Parish

School Board, 393 F.3d 608, 615B16 n.22 (5th Cir. 2004), hold that Tinker applies to off-

campus speech, such as Bell=s. This is a patent misreading of those decisions. In Sullivan,

the court did not apply the Tinker substantial-disruption test to assess whether school

officials violated the First Amendment. The Sullivan court recognized that there is nothing

per se unreasonable about requiring a high school student to submit written material to

school authorities prior to distribution on campus or resulting in a presence on campus, and

that it could not be seriously urged that the school=s prior submission rule is

unconstitutionally vague or overbroad. 475 F.2d at 1076 (citing Shanley, 462 F.2d at 960;

Pervis v. LaMarque Independent Sch. Dist., 466 F.2d 1054 (5th Cir. 1972)). Instead, the

court held that the school principal had disciplined a student for failure to comply with the

school=s rules requiring prior submission to the school principal of all publications, not

sponsored by the school, which were to be distributed on the campus or off campus in a

manner calculated to result in their presence on the campus. Id. The student was

disciplined for twice selling newspapers at the entrance of the school campus, to persons

entering therein, without making prior submission of the papers, and for using profanity

towards the principal (Athe common Anglo-Saxon vulgarism for sexual intercourse@) and in

the presence of the principal=s assistants (specifically, AI don=t want to go to this goddamn

school anyway@). Id. at 1074. Thus, notwithstanding the Sullivan court=s references to

Tinker in that decision, that opinion did not apply the Tinker substantial-disruption test to

off-campus speech.

This court in Porter did not hold that the Tinker substantial-disruption test applies to

off-campus speech. 393 F.3d at 615 n.22. The court concluded that the speech involved in

PorterCviz., a drawing depicting school violence that was inadvertently taken to campus by

the student=s brotherCconstituted off-campus speech for which the Tinker substantial-

disruption test did not apply. Id. at 615. The court found that the circumstances involved

in Porter were Aoutside the scope@ of those involved in other non-Fifth Circuit cases which

have held that in certain situations off-campus speech that is later brought on campus may

be subject to the Tinker substantial-disruption analysis. Id. at 615 n.22. In dicta, the

court acknowledged those other cases applying Tinker to certain categories of off-campus

speech and noted that its Aanalysis today is not in conflict with this body of case law.@ Id.

However, given the facts before it, the Porter court was not in a position to decide whether,

and under what circumstances, Tinker applied to off-campus speech.

Thus, contrary to the dissent=s assertion, the applicability of the Tinker substantial-

disruption test to off-campus speech like Bell=s remains an open question in this circuit.

However, as explained herein, we need not resolve that consequential question because the

School Board did not demonstrate that Bell=s song caused or reasonably could have caused a

substantial disruption. In so doing, we are guided by the A>older, wiser judicial counsel >not

to pass on questions of constitutionality . . . unless such adjudication is unavoidable.==@

Pearson v. Callahan, 555 U.S. 223, 241 (2009) (quoting Scott v. Harris, 550 U.S. 372, 388

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evidence establishes that no substantial disruption ever occurred, nor does it

Ademonstrate any facts which might reasonably have led school authorities to

forecast substantial disruption of or material interference with school

activities.@ Tinker, 393 U.S. at 514. 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. Cf. Shanley,

462 F.2d at 970 (ADisruption in fact is an important element for evaluating the

reasonableness of a regulation screening or punishing student expression.@).

Indeed, the 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. At the

preliminary injunction hearing, Wildmon explained that his students

Aseem[ed] to act normal@ after the posting of the song, and Rainey testified that

most of the talk amongst students had not been about Bell=s song but rather

about his suspension and transfer to alternative school. 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 40 of a purported

(2007) (Breyer, J., concurring); Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944));

see also Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (AThe Court

will not pass upon a constitutional question although properly presented by the record, if

there is also present some other ground upon which the case may be disposed of.@).

40 Defendants point to Rainey=s claim that Asince the song came out, students have

started to mingle [in the gym]@ as evidence of a substantial disruption. However, there is

no evidence that the student=s mingling was improper or anything but a coincidence, nor is

there evidence that such student Amingling@ could reasonably be considered a substantial or

material disruption.

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disruption that the defendants or 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. 41 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.

Furthermore, even if we were to credit the School Board=s unsupported

assertion that it indeed forecasted a disruption as a result of Bell=s song, 42

the summary-judgment evidence nevertheless shows that there are no facts

that Amight reasonably have led@ the School Board to make such a forecast.

Tinker, 393 U.S. at 514. The summary-judgment evidence conclusively shows

that Bell=s song was composed, recorded, and posted to the Internet entirely off

campus. School computers blocked Facebook and school policy prohibited

possession of telephones, thus diminishing the likelihood that a student would

access the song on campus. Moreover, as discussed at greater length infra,

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, as

41 At the preliminary-injunction hearing on March 10, 2011, Superintendent

McNeece, when asked directly if she was aware of any disruption, could point only to the

evidence that teachers had altered their teaching style in response to Bell=s song, which both

Wildmon and Rainey explained was an effort to avoid any appearance of impropriety with

students. As explained herein, teachers= efforts to avoid the appearance of such

improprieties does not constitute a Asubstantial disruption@ of school work or discipline under

the Tinker standard.

42 Although it may not be dispositive, we observe that none of the school personnel

even mentioned the term Adisruption@ at the January 26, 2011 Disciplinary Committee

hearing; and there is no evidence reflecting that the School Board in its ruling on February

7, 2011 found that a disruption occurred or reasonably could have been forecasted as a result

of Bell=s song.

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underscored by the Disciplinary Committee=s own determination that whether

Bell=s song constituted a threat was Avague.@

As we have emphasized, 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. Nevertheless, in

support of its argument that the School Board acted in accordance with Tinker,

the dissent relies upon the School Board=s policy of classifying threats,

harassment, and intimidation of teachers as a Asevere disruption.@ 43 Under

the dissent=s deferential view, certain categories of speech can be Ainherently

disruptive@ within the meaning of Tinker so long as school officials categorize

them as such by their own ipse dixit (such as the School Board=s ASevere

Disruption@ policy), thus rendering unnecessary any meaningful inquiry into

whether the speech in fact did, or reasonably could, cause a substantial

disruption as required by Tinker. Contrary to the dissent=s argument, the

School Board cannot carry its burden of demonstrating a substantial

disruption or a reasonable forecast of one simply by relying on its own policy

or regulation. AThe Fourteenth Amendment, as now applied to the States,

protects the citizen against the State itself and all of its creaturesCBoards of

Education not excepted.@ Barnette, 319 U.S. at 637. AThe authority

possessed by the State to prescribe and enforce standards of conduct in its

schools, although concededly very broad, must be exercised consistently with

constitutional safeguards.@ Goss, 419 U.S. at 574. Moreover, Tinker held

that school officials cannot circumvent their burden of showing that a

43 This policy lists sixteen different Aoffenses@ under the heading ASevere

Disruptions.@ We note that, by its very terms, the other Aoffenses@ qualifying as Asevere

disruptions@ under this policy suggest that the policy relates to on-campus conduct (e.g.,

Arunning in the hall,@ Aunnecessary noise in the hall,@ Agambling or possession of gambling

devices at school@), not to off-campus conduct, like Bell=s.

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substantial disruption occurred, or can be reasonably forecasted, by simply

adopting a policy that categorizes certain speech as a severe or substantial

disruption without any reasonable factual predicate that such speech would

likely lead to substantial disruption of school work or discipline. Tinker, 393

U.S. at 504, 511 (holding that school officials could not adopt and enforce policy

prohibiting students from wearing armbands without a showing that such

regulation was necessary to avoid material or substantial disruption); accord

Shanley, 462 F.2d at 970 (A[T]he board cannot rely on ipse dixit to demonstrate

the >material and substantial= interference with school discipline. Put another

way, Tinker requires that presumably protected conduct by high school

students cannot be prohibited by the school unless there are >. . . facts which

might reasonably have led school authorities to forecast substantial disruption

of or material interference with school activities.=@) (quoting Tinker, 393 U.S.

at 514).

B.

The School Board alternatively and erroneously attempts to invoke this

court=s decision in Ponce v. Socorro Independent School District, 508 F.3d 765

(5th Cir. 2007), in arguing that Bell=s off-campus, but on-line, rap was not

protected by the First Amendment. In Ponce, this court analogized to the

Supreme Court=s decision in Morse 44 and narrowly held that a student=s

44 In Morse, a high school student unfurled a 14-foot banner bearing the phrase

ABONG HiTS 4 JESUS@ during a school-sanctioned and supervised event. 551 U.S. at 397.

The principal confiscated the banner and suspended the student. Id. at 398. The student

filed suit under 42 U.S.C. ' 1983 against the principal and the School Board, claiming that

the principal=s actions violated his First Amendment rights. Id. at 399.

The Morse decision resulted in a narrow holding: a public school may prohibit student

speech at school or at a school-sponsored event during school hours that the school

Areasonably view[s] as promoting illegal drug use.@ Id. at 408. Indeed, Justice Alito=s

concurrence stated that he joined the majority opinion Aon the understanding that (a) it goes

no further than to hold that a public school may restrict speech that a reasonable observer

would interpret as advocating illegal drug use and (b) it provides no support for any

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notebook which contained his plans to commit a coordinated AColumbine-style@

shooting attack on his high school and other district schools was not protected

by the First Amendment. Id. at 771 n.2. Ponce involved particularly

egregious facts: a student brought to campus a notebook containing numerous

violent and disturbing descriptions of campus violence evocative of the school

shootings that have taken place across the country in recent years. We

explained that we were following the lead of the Supreme Court in Morse in

holding that such speech is not protected because it poses a direct and

demonstrable threat of violence unique to the school environment. 45

Specifically, we observed: AIf school administrators are permitted to prohibit

student speech that advocates illegal drug use because >illegal drug use

presents a grave and in many ways unique threat to the physical safety of

students,= . . . then it defies logical extrapolation to hold school administrators

to a stricter standard with respect to speech that gravely and uniquely

threatens violence, including massive deaths, to the school population as a

whole.@ Id. at 771B772 (quoting Morse, 551 U.S. at 425).

Reading Justice Alito=s concurring opinion, in which Justice Kennedy

joined, as controlling in Morse, we recognized that Morse holds only that

restriction of speech that can plausibly be interpreted as commenting on any political or social

issue.@ Id. at 422 (Alito, J., with whom Justice Kennedy joins, concurring). Justice Alito

also made clear that he joined the majority only insofar as Athe opinion does not hold that the

special characteristics of the public schools necessarily justify any other speech restrictions@

beyond those articulated in the Supreme Court=s prior student speech cases. Id. at 423. As

made strikingly clear by Justice Alito=s concurrence, Morse therefore in no way expands

school officials= authority to restrict student speech on social or political matters; rather, the

decision held only that schools have the limited authority to restrict speech at school or a

school-approved event that could be reasonably viewed as promoting illegal drug use.

45 The court observed: ASuch shootings exhibit the character that the concurring

opinion [in Morse] identifies as particular to schools. . . . This environment makes it possible

for a single armed student to cause massive harm to his or her fellow students with little

restraint and perhaps even less forewarning.@

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Aspeech advocating a harm that is demonstrably grave and that derives that

gravity from the >special danger= to the physical safety of students arising from

the school environment is unprotected.@ Id. at 770. However, we observed

that Abecause this is a content-based regulation, the [Alito] concurring opinion

is at pains to point out that the reasoning of the court cannot be extended to

other kinds of regulations of content, for permitting such content-based

regulation is indeed at >the far reaches of what the First Amendment permits.=@

Id. (quoting Morse,551 U.S. at 425 (Alito, J., concurring)). As a result, we

recognized, consistent with Justice Alito=s concurrence, that ATinker=s focus on

the result of speech rather than its content remains the prevailing norm.@ Id.

Ponce therefore narrowly extends Morse in holding that the Tinker

analysis does not apply to speech brought to campus that Agravely and uniquely

threatens violence, including massive deaths, to the school population as a

whole.@ Id. at 772. At the same time, the Ponce opinion explicitly recognizes

the continued applicability of the Tinker substantial-disruption test for most

other types of on-campus speech. Id. at 770. Furthermore, Ponce also

recognizes that, according to Justice Alito=s controlling concurring opinion,

Morse does not expand schools= authority to restrict on-campus speech on social

or political matters. Id. at 769-70.

Applying these principles to the instant case, Bell=s song cannot be

considered to fall within the narrow exception to Tinker recognized by this

court in Ponce, thus depriving his speech of First Amendment protection. As

an initial matter, Ponce did not involve student speech occurring entirely off-

campus; rather, the student in Ponce brought his threatening diary to campus

and showed its contents to a classmate. Id. at 766. More importantly,

however, the Ponce decision explicitly pivoted on the particularized and unique

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threat of grave harm of mass school shootings posed by that student=s private

writings. Id. at 771. Indeed, the student=s notebook graphically detailed the

group=s Aplan to commit a >[C]olumbine shooting= attack@ at the student=s

school, as well as other area schools. Id. In holding such speech unprotected

by the First Amendment, the court in Ponce emphasized that its decision was

based on the fact that Athe speech in question . . . is not about violence aimed

at specific persons, but of violence bearing the stamp of a well-known pattern

of recent historic activity: mass, systematic school-shootings in the style that

has become painfully familiar in the United States.@ Id. at 770B71. In sharp

contrast, Bell=s song contains violent imagery typical of the hyperbolic rap

genre that is Aaimed at specific persons,@ rather than Abearing the stamp of . .

. mass, systematic school-shootings.@ Id. Furthermore, the song amounts

only to a rhetorical threatCnot a genuine oneCand does not come close to the

catastrophic facts threatened in Ponce, which Judge Jolly emphasized were

evocative of a AColumbine@ or AJonesboro@-style school attack. Id. at 771.

Indeed, Bell testified that he did not intend to threaten the two coaches with

his rap song; rather, the song was meant to be an artistic expression that

reflected Bell=s real-life experiences and to raise awareness of an important

issue of concern that he felt would be ignored by school officials. 46 Itawamba

46 We note that Bell=s rap song is speech on a matter of public concern. Speech

involves matters of public concern Awhen it can >be fairly considered as relating to any matter

of political, social, or other concern to the community,= or when it >is a subject of legitimate

news interest; that is, a subject of general interest and of value and concern to the public.= @

Snyder v. Phelps,131 S. Ct. 1207, 1216 (2011) (citation omitted). The arguably

Ainappropriate or controversial character of a statement is irrelevant to the question whether

it deals with a matter of public concern.@ Id. (citation omitted). Superintendent McNeece=s

own testimony at the preliminary injunction hearing explicitly confirmed that the subject

matter of Bell=s songCmale coaches= improper conduct towards female studentsCwould be of

Apublic importance.@ We need not address the district court=s disparagement of student

speech on matters of public concern, as compared to adult speech on matters of public

concern, Bell, 859 F. Supp.2d at 841, because that was part of that court=s erroneous

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school officials= own actions demonstrate that they did not consider Bell=s song

to portend violence by him personally, much less mass school shootings as dealt

with in Ponce. 508 F.3d at 772. For example, the Disciplinary Committee

could not even conclude whether Bell=s song constituted a definite threat to

school officials, and there is no evidence that school officials ever contacted law

enforcement regarding Bell=s song. In fact, after initially informing Bell that

he was suspended pending the outcome of the disciplinary hearing, 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. Moreover,

any purported threat contained in Bell=s song was certainly a far cry from the

A>terroristic threat= to the safety and security of the students and the campus@

that the school officials encountered in Ponce. Id. at 767. We therefore

refuse to broadly extend the holding of Ponce by concluding that Bell=s song is

the equivalent of the extremely threatening notebook created and brought to

school by the student in that case.

C.

The School Board=s additional argument that Bell=s rap song falls within

the Atrue threat@ exception to the First Amendment is likewise meritless. As

explained infra, Bell=s rap was not a plainspoken threat delivered directly,

privately, or seriously to the coaches but, rather, was a form of music or art

broadcast in a public media to critique the coaches= misconduct and also in

furtherance of Bell=s musical ambitions. Moreover, Bell=s rap was not an

unconditional threat that Bell himself would physically harm the coaches; at

most, the song amounted to a conditional warning to them of possible harm

from the female students= family members if they continued to harass the

interpretation and application of Tinker which we reject herein.

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young women. Finally, as evidenced by the reactions of the listeners

themselves, there was no reasonable or objective ground for the coaches to fear

that Bell personally would harm them.

The protections that the First Amendment affords speech and expressive

conduct are not absolute. Virginia v. Black, 538 U.S. 343, 358 (2003). The

Supreme Court has long recognized that the government may regulate certain

unprotected categories of expression consistent with the Constitution. See,

e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 571B72 (1942). One such

category of unprotected speech is that which constitutes a Atrue threat.@

Watts v. United States, 394 U.S. 705 (1969). A>True threats= encompass those

statements where the speaker means to communicate a serious expression of

an intent to commit an act of unlawful violence to a particular individual or

group of individuals.@ Black, 538 U.S. at 359 (citing Watts, 394 U.S. at 708).

In Watts, the petitioner was convicted of violating a 1917 statute which

prohibits a person from Aknowingly and willfully@ making Aany threat to take

the life of or to inflict bodily harm upon the President of the United States.@

Id. (citing 18 U.S.C. ' 871(a)). As the Watts Court explained:

The incident which led to petitioner=s arrest occurred on August

27, 1966, during a public rally on the Washington Monument

grounds. The crowd present broke up into small discussion

groups and petitioner joined a gathering scheduled to discuss

police brutality. Most of those in the group were quite young,

either in their teens or early twenties. Petitioner, who himself

was 18 years old, entered into the discussion after one member of

the group suggested that the young people present should get more

education before expressing their views. According to an

investigator for the Army Counter Intelligence Corps who was

present, petitioner responded: >They always holler at us to get an

education. And now I have already received my draft classification

as 1-A and I have got to report for my physical this Monday coming.

I am not going. If they ever make me carry a rifle the first man I

want to get in my sights is L.B.J.= >They are not going to make

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me kill my black brothers.= On the basis of this statement, the jury

found that petitioner had committed a felony by knowingly and

willfully threatening the President.

Id. at 705B06 (emphasis added).

On petition for writ of certiorari, the Supreme Court reversed, observing

that Awhatever the >willfullness= requirement [of the statute] implies, the

statute initially requires the Government to prove a true >threat.=@ Id. at 708.

The Court held that the Akind of political hyperbole@ deployed by the petitioner

could not qualify as a Atrue threat@ in light of the A>profound national

commitment to the principle that debate on public issues should be

uninhibited, robust, and wideopen, and that it may well include vehement,

caustic, and sometimes unpleasantly sharp attacks on government and public

officials.=@ Id. (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270

(1964)). In this regard, the Court observed that A[t]he language of the political

arena, like the language used in labor disputes . . . is often vituperative,

abusive, and inexact.@ Id. (citing Linn v. United Plant Guard Workers of

America, 383 U.S. 53, 58 (1966). The Court concluded: AWe agree with

petitioner that his only offense here was >a kind of very crude offensive method

of stating a political opposition to the President.= Taken in context, and

regarding the expressly conditional nature of the statement and the reaction

of the listeners, we do not see how it could be interpreted otherwise.@ Id.

Applying the factors identified as instructive by the Court in WattsCi.e.,

the context and manner of the speech, its conditional nature, and the listeners=

reactions, it is clear that the rap song that Bell recorded in a professional studio

and subsequently posted on the Internet in protest of what he perceived as an

injustice occurring at his high school did not constitute a Atrue threat.@

First, with regard to context, it is important to considerCalbeit not

ultimately dispositiveCthat the purported Athreats@ were contained in a rap

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song, a musical genre that, like other art forms, has its own unique artistic

conventions. 47 See Planned Parenthood of Columbia/Willamette, Inc. v.

American Coalition of Life Activists, 290 F.3d 1058, 1078 (9th Cir. 2002)

(AIndeed, context is critical in a true threats case and history can give meaning

to the medium.@). For example, hyperbolic and violent language is a

commonly used narrative device in rap, which functions to convey emotion and

meaningCnot to make real threats of violence. See, e.g., Andrea L. Dennis,

Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31

Colum. J.L. & Arts 1, 22 (2007) (AMetaphor plays a critical role in rap music

lyrics. . . . In rap music, metaphors not only express hope and positivity but

also >despair, stagnation, or destruction.=@) (internal citation omitted). Of

course, the use of violent rhetorical imagery in music is not exclusive to rap.

Presumably, neither the School Board nor the dissent would believe that

Johnny Cash literally Ashot a man . . . just to watch him die.@ Nor would they

likely conclude that the Dixie Chicks= hit song AGoodbye Earl@ described the

artists= own literal pre-meditated murder of a man using poisonous black-eyed

peas, or that Bob Marley Ashot the sheriff@ but spared the deputy=s life.

Indeed, as songwriters of every genre, rap artists live through invented

characters and explore roles and narrative voices, both on and offstage. 48 In

addition, the context-related evidence demonstrates that Bell, as an aspiring

rap musician who has been writing and recording music since his early teens,

47See Andrea L. Dennis, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and

Criminal Evidence, 31 Colum. J.L. & Arts 1, 20 (2007).

48 In this regard, contrary to the dissent=s argument, Bell=s statement that his song

reflected Areal-life@ experience, does not mean his lyrics are all literally true, rather than, in

part, rhetorical and creative.

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publicized the song not only in an effort to raise awareness of the coaches=

misconduct but also to attract the attention of record labels and potential fans.

Equally important to the context of Bell=s rap is the fact that it was

broadcast publicly over the Internet and not conveyed privately or directly to

the coaches. Courts have recognized that statements communicated directly

to the target are much more likely to constitute true threats than those, as

here, communicated as part of a public protest. 49 Compare Watts, 394 U.S. at

705B06 with United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996). The

case law shows that Ait makes a big difference@ whether the purportedly

threatening speech is Acontained in a private communicationCa face-to-face

confrontation, a telephone call, a dead fish wrapped in newspaperCor is made

during the course of public discourse. The reason for this distinction is

obvious: Private speech is aimed only at its target. Public speech, by contrast,

seeks to move public opinion and to encourage those of like mind.@ Planned

Parenthood of Columbia/Willamette, Inc., 290 F.3d at 1099 (9th Cir. 2002)

(Kozinski, J. dissenting). Indeed, as the Sixth Circuit recently observed, such

contextual cues are vital in assessing whether a reasonable listener would

49 In Porter, this circuit cited Doe v. Pulaski County Special School District, 306 F.3d

616 (8th Cir. 2002), in analyzing the threshold issue of the Atrue threat@ analysis, namely:

whether the purported threat was Aintentionally or knowingly communicated to either the

object of the threat or a third person.@ 393 F.3d at 616B17. In Doe, the Eighth Circuit also

listed five non-exhaustive factors relevant to the issue of how a reasonable person would

receive an alleged threat. 306 F.3d at 623. One of those factors was Awhether the person

who made the alleged threat communicated it directly to the object of the threat.@ Id. The

Eighth Circuit also considered the reactions of those who heard the threat, whether the

threat was conditional, whether the speaker had a history of making threats against the

object of the threat, and whether the object of the threat had reason to believe that the

speaker had a violent tendency. Id. We observe that all of these factors weigh in favor of

the conclusion that Bell=s song was not a Atrue threat.@ For example, as explained infra, the

warning in Bell=s song was clearly conditional in nature, and there was no evidence Bell had

violent tendencies or had ever threatened the coaches.

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consider a statement a serious expression of an intent to cause harm: AA

reasonable listener understands that a gangster growling >I=d like to sew your

mouth shut= to a recalcitrant debtor carries a different connotation from the

impression left when a candidate uses those same words during a political

debate. And a reasonable listener knows that the words >I=ll tear your head

off= mean something different when uttered by a professional football player

from when uttered by a serial killer.@ United States v. Jeffries, 692 F.3d 473,

480 (6th Cir. 2012). Moreover, the Supreme Court has cautioned that courts

should be careful to keep in mind the Apublic@ nature of purportedly

threatening speech in assessing whether it falls outside the protections of the

First Amendment. See, e.g., N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S.

886, 926B27 (1982) (ASince respondents would impose liability on the basis of a

public addressCwhich predominantly contained highly charged political

rhetoric lying at the core of the First AmendmentCwe approach this suggested

basis of liability with caution.@).

Likewise, in the instant case, the overall context reveals that a

reasonable listener would be able to distinguish genuine threats of

perpetrating school violence, like those in Ponce, from the purely rhetorical use

of violent language contained in the lyrics of an aspiring rap musician who

publicly broadcast his song, rather than privately communicated it, in an effort

to (i) raise awareness of an important issue of public concern, and (ii) attract

the attention of listeners and record labels in furtherance of his musical

ambitions.

Second, the purported Athreats@ contained in the song are conditional in

nature, as demonstrated by both the lyrics themselves and the school officials=

interpretation of them. The language referencing Acapping@ Wildmon is

conditional by its very terms: AMiddle fingers up if you want to cap that nigga@

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(emphasis added). Moreover, one of the Disciplinary Committee members

agreed with Bell that the song=s lyrics regarding putting a pistol down

someone=s mouth conveyed that Aif [the teachers] don=t stop what they=re doing

then a parent kinda is gonna do that, not really him [i.e., Bell].@

Third and finally, the reactions of the listeners themselves undermine

the notion that a reasonable listener would view the song as a threat. For

example, the Facebook screen shot indicates that Bell=s Facebook Afriends@ who

commented on the song did not view it as a threat by Bell against the coaches

but rather as the product of Bell=s artistic aspirations (e.g., AHey, don=t forget

me when you=re famous@ and ALol. . . Mane Im tellin you cuz . . . been tellin you

since we was little . . . keep fuckin with it man you got all the talent in the

world . . .@). Moreover, the Disciplinary Committee could not even conclude

whether Bell=s song constituted a definitive threat, instead finding the issue

Avague,@ and Coach Rainey himself testified that he viewed the song as Ajust a

rap@ rather than an actual threat. Even Coach Wildmon, who testified that

he took the song Aliterally@ and felt Ascared,@ did not indicate whether he

actually feared Bell, rather than the possibility that one of the female students=

family members might harm him in light of the song=s revelations.

As the foregoing demonstrates, the overall factual context reveals that

neither the coaches, nor school officials, could have reasonably interpreted

Bell=s song as a serious expression of an intent to cause harm. Rather, we

conclude that the violent language contained in the lyrics was clearly rhetorical

in nature, and we therefore reject the argument that Bell=s song constituted a

Atrue threat@ of violence. 50

50 Perhaps correctly realizing that the School Board cannot overcome the high hurdle

of showing Bell=s song constituted a Atrue threat,@ the dissent seeks to talismanically invoke

the tragic history of mass school shootings in an effort to shield the School Board=s actions

from any modicum of constitutional scrutiny. We reject the dissent=s overly deferential

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IV.

In conclusion, we do not decide whether the Tinker Asubstantial-

disruption@ test can be applied to a student=s rap song that he composed,

recorded and posted on the Internet while he was off campus during non-school

hours. Rather, we decide only that, even assuming arguendo the School

Board could invoke Tinker in this case, it would not afford the School Board a

defense for its violation of Bell=s First Amendment rights because the evidence

does not support a finding, as would be required by Tinker, that Bell=s song

either substantially disrupted the school=s work or discipline or that the school

approach. Although the history of violence in schools may be a pertinent consideration in

determining whether school officials acted reasonably, school officials cannot simply shirk

constitutional dictates by pointing to a school tragedy each time a student sings, writes, or

otherwise uses violent words or imagery outside of school.

Moreover, while conceding that Bell=s song addresses a matter of public concern, the

dissent does not give due consideration to the consequences on social and political discourse

of reflexively deeming Bell=s song a Atrue threat.@ The genius of the First Amendment is its

implicit recognition that the great diversity of our democracy yields a corresponding diversity

in the creative forms of social and political debate. See, e.g., Brown v. Entertainment

Merchants Ass=n, 131 S. Ct. 2729, 2733 (2011) (AUnder our Constitution, esthetic and moral

judgments about art and literature . . . are for the individual to make, not for the Government

to decree, even with the mandate or approval of a majority.@) (internal quotation and citation

omitted); Cohen v. California, 403 U.S. 15, 25 (1971) (observing that Aone man=s vulgarity is

another=s lyric@). A cartoon can be as powerful as a pamphlet. See Hustler Magazine v.

Falwell, 485 U.S. 46, 53 (1988); accord Brown, 131 S. Ct. at 2733 (ALike the protected books,

plays, and movies that preceded them, video games communicate ideasBand even social

messagesBthrough many familiar literary devices (such as characters, dialogue, plot, and

music) and through features distinctive to the medium (such as the player=s interaction with

the virtual world).@). The most vulgar and hateful of words can be the only ones capable of

conveying one=s ideology. See Snyder, 131 S. Ct. at 1216B17. Within this same tradition,

Bell accomplished his social critique of the coaches= harassment of female students by

including vulgar and violent language in his off-campus rap recording. Compare Watts, 394

U.S. at 708 (AThe language of the political arena, like the language used in labor disputes . .

. is often vituperative, abusive, and inexact.@). While some may prefer a socio-political

landscape lacking such rhetoric, the First Amendment nevertheless protects it, and the

narrow applicability of the Atrue threat@ doctrine ensures that speech on such matters of

public concern, even if vulgar or violent, is not chilled. See id. at 706 (holding that

petitioner=s statement at a public rally that, if drafted and given a rifle, he would shoot the

President was political hyperbole and not a Atrue threat@ and was, therefore, protected by the

First Amendment).

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officials reasonably could have forecasted such a disruption. With respect to

the School Board=s alternative argument, we conclude that Bell=s song did not

Agravely and uniquely threaten violence@ to the school population such to

justify discipline pursuant to this court=s narrow holding in Ponce that student

speech that threatened a Columbine-style attack on a school was not protected

by the First Amendment. We also conclude that Bell=s speech did not

constitute a Atrue threat,@ as evidenced by, inter alia, its public broadcast as a

rap song, its conditional nature, and the reactions of its listeners.

For these reasons, the district court=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. In all other

respects, the judgment of the district court is AFFIRMED IN PART.

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RHESA HAWKINS BARKSDALE, Circuit Judge, concurring in part and

dissenting in part.

The majority’s long-overdue opinion (oral argument was held over two

years ago, on 3 December 2012), reviews cross-motions for summary judgment.

I concur, of course, in the majority’s holding that the substantive-due-process

claim by Taylor Bell’s mother is waived and that qualified immunity precludes

liability against the superintendent and principal in their individual

capacities, leaving at issue only Bell’s First Amendment claim against the

school board. Maj. Opn. at 2 n.1. I must dissent, however, from the

majority’s both vacating the summary judgment for the school board on that

claim and rendering summary judgment for Bell on it. (Assuming arguendo

the school board is not entitled to summary judgment, Bell is not entitled to it

either.) Regarding the First Amendment claim, except for the intentionally

published threats to, and harassment and intimidation of, two teachers, which

the school board found justified disciplinary action against Bell, I will not take

issue with the majority’s categorizing at 30, in note 46, the miniscule balance

of Bell’s incredibly violent, vulgar, and profane rap recording as involving “a

matter of public concern”.

“With the advent of the Internet and in the wake of school shootings at

Columbine, Santee, Newtown and many others, school administrators face the

daunting task of evaluating potential threats of violence and keeping their

students safe without impinging on their constitutional rights.” Wynar v.

Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1064 (9th Cir. 2013). In that regard,

school administrators must be afforded wide latitude in proactively addressing

language that reasonably could be interpreted as a threat, harassment, or

intimidation against members of the school community.

“Experience shows that schools can be places of special danger.” Morse

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v. Frederick, 551 U.S. 393, 424 (2007) (Alito, J., concurring). For example, 11

days after oral argument in our court for this appeal on 3 December 2012, a

16-year-old entered Sandy Hook Elementary School, in Newtown, Connecticut,

and shot and killed 20 school children and six staff members, including the

principal, before killing himself. In the two years since the Sandy Hook

shooting, in the United States there have been 93 school shootings (defined as

instances of the discharge of a firearm on campus) and 40 major school

shootings (defined as an incident where the shooter was linked to the school

and at least one person was shot on campus), including the most recent

incidents at Florida State University, where a former student opened fire on

students in the library, and at Marysville-Pilchuck High School outside

Seattle, Washington, where a student killed four fellow students, before killing

himself. Greg Botelho, Faith Karimi, & Nick Valencia, Gunman opens fire in

Florida State University library; 3 wounded, CNN, 21 Nov. 2014, available at

http://www.cnn.com/2014/11/20/us/fsu-incident/; Faith Karimi & Joe Sutton,

4th Victim dies after shooting at high school cafeteria in Washington state,

CNN, 8 Nov. 2014, available at http://www.cnn.com/2014/11/08/us/washington

-school-shooting/index.html; Matt Kreamer, 2 dead, 4 wounded in shooting at

Marysville-Pilchuck High School, The Seattle Times, 24 Oct. 2014, available

at http://blogs.seattletimes.com/today/2014/10/shooting-reported-at-

Marysville-pilchuck-high-school/; School Shootings in America Since Sandy

Hook, We Are Everytown for Gun Safety (3 Dec. 2014),

http://everytown.org/article/schoolshootings/; see also Spinning Statistics on

School Shootings, FactCheck.org (25 June 2014),

http://www.factcheck.org/2014/06/spinning-statistics-on-school-shootings/.

Tragically, this post-oral-argument school-related violence is consistent

with the increasing school-related violence prior to the date of oral argument

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here. From 19 February 1997 (the day a 16-year old shot and killed a student

and principal, and injured two others in Bethel, Alaska) to the date the school

board found against Bell on 7 February 2011, there were 171 school shootings

(including those in Pearl, Mississippi, Littleton, Colorado (Columbine), and

Blacksburg, Virginia (Virginia Tech)). Major School Shootings in the United

States Since 1997, Brady Campaign to Prevent Gun Violence (17 Dec. 2012),

http://gunviolence.issuelab.org/resource/major_school_schootings_in_the_Unit

ed_States_since_1997. For example, on 6 February 2011, the day before the

school-board meeting concerning Bell, one student was killed and 11 others

were injured during a shooting at Youngstown State University in Ohio. Id.

As evidence of this disturbing trend of school violence, each State in our

circuit has passed legislation addressing such violence since the Sandy Hook

shooting. See Nathan Koppel, More Texas Schools Allow Armed Employees,

Wall Street Journal, 25 Aug. 2014, available at

http://online.wsj.com/articles/more-texas-schools-allow-armed-employees-

1408986620. Louisiana has passed legislation changing/expanding

emergency preparedness drills; Mississippi and Texas have passed legislation

allowing the addition of school police or security officers; and Texas has also

passed legislation allowing certain personnel to carry firearms on school

grounds, and authorizing state-funded school safety centers. Id. Symptomatic

of how commonplace violence at schools has become, six States “mandate

active shooter drills for schools”, designed to simulate mass shooting

situations, while 24 States “requir[e] general school lockdown or safety

drills”. Dan Frosch, ‘Active Shooter’ Drills Spark Raft of Legal Complaints,

Wall Street Journal, 4 Sept. 2014, available at

http://online.wsj.com/articles/active-shooter-drills-spark-raft-of-legal-

complaints-1409760255.

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Meanwhile, nearly all teenagers use the Internet, with the majority of

them accessing it and social-networking websites through mobile devices.

Amanda Lenhart, Presentation, PewResearch Internet Project, Teens &

Technology: Understanding the Digital Landscape (25 Feb. 2014),

http://www.pewinternet.org/2014/02/25/teens-technology-understanding-the-

digital-landscape/ (explaining 95 percent of teenagers use the Internet and 74

percent of teenagers between 12 and 17 years old are mobile Internet users);

see also Amanda Lenhart, Presentation PewResearch Internet Project, It Ain’t

Heavy, It’s My Smartphone: American Teens & The Infiltration Of Mobility Into

Their Computing Lives (14 June 2012),

http://www.pewinternet.org/2012/06/14/it-aint-heavy-its-my-smartphone-

american-teens-and-the-infiltration-of-mobility-into-their-computing-lives/

(explaining, as of 2012, 80 percent of teenagers used social-networking

websites). Commonly used social-media websites include Facebook (provides

a litany of social services such as “news feed”, personalized “profile” and

instant-messaging), Twitter (allows users to “tweet” statements up to 140

characters, and view others’ “tweets”, in personalized feed), Instagram (allows

users to post, and view others’, pictures, in personalized feed), Snapchat

(allows users to send personalized pictures to others while limiting time users

may view an image), and Pinterest (allows users to post and group pictures or

webpages to their profile). As a result of this “near-constant student access to

social networking sites on and off campus, when offensive and malicious speech

is directed at school officials and disseminated online to the student body, it is

reasonable” for school officials to foresee a substantial disruption to the school

environment. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915,

950 (3d Cir. 2011) (Fisher, J., dissenting).

“[A] page of history is worth a volume of logic”. N.Y. Trust Co. v. Eisner,

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256 U.S. 345, 349 (1921) (Holmes, J.); see also Oliver Wendell Holmes, Jr., The

Common Law 5 (1881) (“The life of the law has not been logic: it has been

experience.”). In the light of such use of social media by students and the oft-

repeated school violence before and after the school board’s finding against

Bell, school administrators must remain vigilant as they seek to prevent

violence against students and faculty. As part of this vigilance, they must

take seriously any statements by students resembling threats of violence, as

well as intimidation and harassment by them. Long ago, Justice Jackson

warned: “There is danger that, if the Court does not temper its doctrinaire logic

with a little practical wisdom, it will convert the constitutional Bill of Rights

into a suicide pact”. Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949)

(Jackson, J., dissenting). That warning applies to the result-driven majority

opinion.

Throughout its opinion, the majority attempts to camouflage Bell’s

threats, intimidation, and harassment under the guise of “rap music”. For

this red herring, in classifying Bell as an “aspiring rap musician”, e.g., at 3, 34,

35, and note 21 at 7, the majority hopes characterizations and euphemistic

descriptions will distract from the patent seriousness of Bell’s aggressive and

dangerous comments. Whether Bell was “rapping”, singing country music, or

reading poetry is immaterial; he threatened, intimidated, and harassed two

teachers. At issue is the message, not the medium.

Regrettably, although the majority pays lip service to the increasing

danger in schools, it then sanctions the threats, harassment, and intimidation

in the rap recording, including by turning its back on the deference that must

be accorded school administrators in dealing with such serious matters.

Among other threatening, harassing, and intimidating statements, Bell’s rap

recording includes: “I’m going to hit you with my [R]ueger [sic]”(referring to

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a firearm manufactured by Sturm, Ruger & Co.), “going to get a pistol down

your mouth /Boww” (or “Pow”), and “middle fingers up if you want to cap that

nigga” (“cap” is slang for “shoot”). To hold, as the majority does, that these

and similar statements in the rap recording are protected speech is beyond

comprehension. With due deference, the majority’s holding is absurd. This

cannot be the law.

I.

A correct recitation of the underlying facts, from the summary-judgment

record, is especially important for this appeal. The majority opinion fails in

that regard. For example, it often states that Bell “testified”, without

specifying whether it was during the disciplinary-committee hearing (at which

his informal comments were not under oath) or at the hearing on his request

for a preliminary injunction. E.g., Maj. Opn. at 3, 8, 9, and in note 3 at 3.

Bell posted the rap recording on 5 January 2011 to his public Facebook

page, using what appears to be a representation of a Native American as the

rap recording’s cover image. (The Itawamba Agricultural High School mascot

is a Native American.) A screenshot of Bell’s Facebook profile, taken

approximately 16 hours after he posted the rap recording, shows his profile,

including the rap recording, was open to, and viewable by, the public. In other

words, anyone could access and listen to the rap recording.

Additionally, although the majority claims at 7, in note 21, that there is

no evidence identifying Bell’s Facebook “friends”, or whether any attended his

school, when viewing a person’s profile, Facebook shows ten randomly selected

friends. In this instance, three of those friends were self-identified members

of the Itawamba school district.

The following school day, on 6 January, Coach W. received a text

message from his wife, asking about the rap recording; she had learned about

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it from a friend. The coach listened to the rap recording at school, using a

student’s cellular telephone, which had access to the Internet. The coach

immediately reported the rap recording to the school’s principal, Wiygul, who

then informed McNeece, the school-district superintendent.

On 7 January, Wiygul, McNeece, and Floyd (the school-board attorney)

questioned Bell about the rap recording and its accusations, after which Bell

was sent home for the remainder of the day. Because of snow days, the school

was closed through 13 January.

During his time away from school, and to give far wider dissemination of

his rap recording, Bell created a finalized version of it (adding commentary and

a picture slideshow), and uploaded it to YouTube, again making the rap

recording available to the public.

Bell returned to school on 14 January, but was removed from class

midday by the assistant principal and told he was suspended, pending a

disciplinary-committee hearing (school officials permitted him to remain in the

school commons until the school bus he rode arrived at the end of the day). By

letter that same day to Bell’s mother, the school-district superintendent

(McNeece) informed her a hearing would be held on 19 January to consider

disciplinary action for Bell’s “alleged threatening intimidation and/or

harassment of one or more school teachers”. In the letter, McNeece explained

Bell’s suspension would continue until further notification, and informed his

mother of the possible actions the school board could take.

In an 18 January telephone conversation with the school-board attorney,

Bell’s mother requested Bell’s hearing be continued until 26 January. The

school-board attorney re-set the hearing for the requested date.

The disciplinary-committee hearing was held 26 January. Although

there is no transcript of the hearing, the recording of it is included in the

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summary-judgment record. The information contained in the disciplinary-

committee-hearing recording more than justified the subsequent action taken

by the school board. The disciplinary-committee-hearing recording is the

critical evidence at hand, making it necessary to describe the contained

information in great detail.

The hearing was facilitated by Floyd, the school-board attorney; three

disciplinary-committee members were present, as well as the principal, Bell,

his mother, and their attorney. The school-board attorney began by

addressing the informal nature of the hearing. And, throughout the hearing,

the school-board attorney emphasized the issue before the committee was

whether Bell threatened, harassed, and/or intimidated school personnel and

whether he should be disciplined as a result. The school-board attorney

explained that the allegations against the two coaches would be the subject of

another proceeding. (The majority fails at 10, in note 25, to include this

explanation in its discussion of Bell’s attorney’s attempting, at the

disciplinary-committee hearing, to inject students’ allegations against the

coaches.)

Wiygul, the principal, stated: Coach W. came into his office, explaining

“several kids” were talking about a rap recording Bell had posted on Facebook,

which was derogatory toward him and another coach, and accused them of

inappropriate conduct; the following morning, Bell was brought into a meeting

and asked about his accusations, but would not talk about them; at that time,

school officials decided it was best to send Bell home for the remainder of the

day; and Bell came to school the next school day (which, due to snow, was the

following Friday), but the assistant principal told him to leave as he was

suspended pending a hearing.

After Wiygul spoke, the YouTube version of the rap recording was played

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at the hearing.

Bell and his mother then stated that he was not told of the suspension

until Friday (14 January), when the assistant principal saw Bell and contacted

McNeece, the school-district superintendent, asking her what to do about Bell’s

presence. According to them, McNeece first instructed the assistant

principal that Bell could stay, but then instructed him to tell Bell to leave and

not come back.

Bell’s attorney then began asking who decided on the temporary

suspension and the reason for that decision. Floyd, the school-board attorney,

redirected the discussion, explaining the purpose of the hearing was to

determine whether the suspension should be upheld, and whether the

allegations that Bell threatened, harassed, and intimidated teachers were

correct.

One of the committee members asked Bell if he had spoken to anyone at

the school about the accusations he made in the rap recording. Bell explained

he did not speak to anyone about those accusations, but instead made the rap

recording because he knew people were “gonna listen to it, somebody’s gonna

listen to it”. (Several times during the hearing Bell acknowledged he posted

the rap recording to Facebook because he knew it would be viewed and heard

by students. Moreover, he explained that at least 2,000 people contacted him

about the rap recording in response to the Facebook and YouTube postings.)

Although Bell’s attorney tried to begin discussing the misconduct of the

coaches alleged in the rap recording, the school-board attorney again

redirected the conversation to the purpose of the hearing, which was, as she

explained, to discuss the “comments made . . . the ‘you’ve f—ed with the

wrong one / going to get a pistol down your mouth / POW’ [because] those are

threats to a teacher”.

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Bell responded by stating, “Well that ain’t really what I said”, and then

provided what he described as the “original copy”. (It is unclear from the

disciplinary-committee-hearing recording, or other parts of the summary-

judgment record, which copy of the rap item Bell provided. There are three

written versions of the rap item in the record. The first was submitted as an

exhibit by the school board with its response in opposition to Bell’s motion for

a preliminary injunction and used the word “ruler”, instead of “rueger [sic]”,

following “I’m going to hit you with my. . .”. The other two versions were

exhibits introduced at the preliminary-injunction hearing. The second

version was submitted by Bell and used the word “rueger [sic]”. The third

version is hand-written excerpts, submitted by the school board. During the

preliminary-injunction hearing, the school board stipulated to the accuracy of

Bell’s transcription. Finally, the “rueger [sic]” and “ruler” versions were both

re-submitted as exhibits with the cross-motions for summary judgment. The

“rueger [sic]” version was submitted with Bell’s motion for summary judgment

as an exhibit, and the “ruler” version was submitted with the school-board’s

motion.)

Bell explained he did not mean he was going to shoot anyone, but that

he was only “foreshadowing something that might happen”. Nevertheless,

Bell acknowledged that “certain statements” were made to his mother that

“‘put a pistol down your mouth’[,] that is a direct threat”. Floyd, the school-

board attorney, clarified for the record, and the mother agreed, that no one at

the hearing made those statements to Bell’s mother. Rather, those

statements were made “outside the school setting”.

One of the committee members asked Bell why he had posted a new

version of the rap recording on YouTube after school officials had approached

him about his posting the rap recording on Facebook. Bell gave a few (and

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somewhat conflicting) explanations: the version he posted on Facebook was a

raw copy, so he wanted a finalized version posted on YouTube; the Facebook

version was posted for his friends and “people locally” to hear, whereas the

YouTube version was for music labels to hear; and he posted the YouTube

version with a slideshow of pictures to help better explain what the rap

recording was about because people had been asking him about it (the

Facebook version only included a brief explanation of the backstory in the

caption to the rap recording).

Near the end of the disciplinary-committee hearing, Bell explained again

that: he put the rap recording on Facebook and YouTube knowing it was open

to public viewing; part of his motivation was to “increase awareness of the

situation”; and, although he did not think the coaches would hear the rap

recording and did not intend the rap recording to be a threat, he knew students

would listen to the rap recording, later stating “students all have Facebook”.

Throughout the hearing, the school-board attorney and committee

members were very considerate toward Bell and counseled him on what

appropriate action he could have taken. (Amazingly, one member even told

Bell that he “really can rap” and explained there would have been no problem

with the rap recording or its vulgar language if it had not included threats

against school employees. The majority claims at 12, in note 29, that this

committee member did not characterize Bell’s statements as “threatening”,

and only admonished Bell for his word choice, “thus providing Bell poetic or

artistic advice”. Given that the disciplinary committee found Bell harassed

and intimidated the coaches, while finding it was vague whether he threatened

them, this distinction by the majority is wide of the mark. It is consistent with

the majority’s going to any extreme to avoid the obvious: that Bell threatened,

intimidated, and harassed two teachers.) At the close of the disciplinary-

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committee hearing, the school-board attorney emphasized, and Bell’s attorney

did not contest, that by posting the rap recording to an open Facebook page,

Bell knew anyone could hear the rap recording.

By 27 January letter to Bell’s mother, the school-board attorney advised:

the disciplinary committee had determined “the issue of whether or not lyrics

published by Taylor Bell constituted threats to school district teachers was

vague”, but that the publication of the rap recording constituted harassment

and intimidation of two teachers, in violation of school-board policy and state

law; as a result, the disciplinary committee recommended Bell’s seven-day

suspension be upheld and that he be placed in the county’s alternative school

for the remainder of the nine-week grading period; Bell would not be “allowed

to attend any school functions and [would] be subject to all rules imposed by

the Alternative School”; and “[he would] be given time to make up any work

missed while suspended or otherwise receive a 0, pursuant to Board policy”.

By 1 February letter, the school-board attorney confirmed to Bell’s

attorney the content of their 31 January conversation, during which Bell’s

attorney had stated: Bell wished to appeal the disciplinary-committee’s

recommendation; and Bell and his mother were expected to appear before the

board on 7 February without counsel, because their attorney was unable to

attend due to a scheduling conflict. The letter advised that, despite the

recommendation that Bell begin alternative school on 27 January, he had not

attended any classes and explained these absences would add to the length of

time before he would be allowed to return to a regular classroom.

The only document in the record from the 7 February school-board

meeting is the minutes of that meeting. They state: “Chairman Tony

Wallace entertained a motion by Clara Brown to accept the discipline

recommendation of the discipline committee regarding student with MSIS

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#000252815 (I.A.H.S.) and finding that this student threatened, harassed and

intimidated school employees. Wes Pitts seconded the motion. Motion

Carried Unanimously.” (Subsequently, at the 10 March preliminary-injunction

hearing, the school-board attorney testified that, at the 7 February school-

board meeting, the board listened to a recitation of Bell’s rap item.

The majority at 13, note 32, states the “record is unclear regarding the

exact evidence presented to the School Board”, but that the “Board’s decision

apparently was based on the same audio-recording of Bell’s song heard by the

Disciplinary Committee”. The record is not “unclear”. During the

preliminary injunction hearing, the school-district’s attorney asked McNeece,

the school-district superintendent, “[T]he two lyrics that I’ve read into the

record and these witnesses have read into the record, were presented to the

school board, correct?”, to which McNeece replied, “That’s correct.” Portions

of the rap item read into the record include: “[G]oing to get a pistol down your

mouth” and “Middle fingers up, if you want to cap that nigga”. Therefore, it

is not unclear what the school board considered. Furthermore, at the

beginning of the preliminary-injunction hearing, Bell’s attorney submitted as

evidence the transcription of the rap item. As discussed supra, at that

hearing, the school board accepted this transcription as “the correct version”.)

By 11 February letter to Bell’s mother, the school-board attorney

explained that, contrary to the earlier-described lesser findings of the

disciplinary committee (Bell had harassed and intimidated two teachers; but,

whether he had made a threat was “vague”), the school board had determined:

“Bell did threaten, harass and intimidate school employees in violation of

School Board policy and Mississippi State Law”. (According to the written

school policy, “[h]arassment, intimidation, or threatening other students

and/or teachers” constitutes a “severe disruption”.) Notwithstanding the

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school board’s determining Bell had engaged in conduct even more serious than

that found by the disciplinary committee, the school board upheld the

recommendations of the disciplinary committee.

On 24 February, Bell and his mother filed this action, claiming the school

board, superintendent, and principal, inter alia, violated Bell’s First

Amendment rights. Plaintiffs moved for a preliminary injunction on 2 March,

seeking Bell’s immediate reinstatement to his high school, including the

reinstatement of “all privileges to which he was and may be entitled as if no

disciplinary action had been imposed”, and that all references to this incident

be expunged from his school records.

For the earlier-referenced 10 March hearing on the preliminary-

injunction request, Bell included four affidavits from students at his school,

containing allegations against the coaches. (The affidavits were not considered

by the district court during the preliminary-injunction hearing.)

At the hearing, the superintendent testified that she had attended the

school-board meeting at which Bell’s rap item was presented; and that there

was a foreseeable danger of substantial disruption at the school as a result of

the rap recording.

Both coaches accused and threatened in the rap recording testified at the

preliminary-injunction hearing; each explained the rap recording affected their

work at the school. Coach R. testified that, subsequent to the publication of

the rap recording, students began spending more time in the gym, despite

teachers telling them to remain in classrooms; and Coach W. testified that he

interpreted the words in the rap recording literally and was frightened. (The

majority at 24–25, in note 41, disputes the nature of the testimony by claiming

the only evidence of a substantial disruption was the coaches’ alteration of

their teaching styles “to avoid any appearance of impropriety”, and, at 36,

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seeks to diminish the importance of the testimony by stating Coach W. “did not

indicate whether he actually feared Bell, rather than the possibility that one

of the female students’ family members might harm him in light of the song’s

revelations”. This is incorrect. For example, as the majority admits at 14–

15, Coach W. testified that, in addition to being frightened by the rap recording,

he did not allow the members of the school basketball team he coached to leave

after games until he was in his vehicle. Moreover, Coach W.’s testimony

provides valuable insight into how an objectively reasonable person would

interpret the threats in the recording.) At the hearing, the district court

refused to entertain questioning on whether the allegations against the two

coaches were true. After finding Bell’s last day of alternative school would be

the next day, 11 March, the district court ruled the issue was moot and denied

the preliminary injunction.

On cross-motions for summary judgment, the district court denied Bell’s

motion and granted defendants’ (the school board, superintendent, and

principal). In doing so, it ruled the rap recording constituted “harassment and

intimidation of teachers and possible threats against teachers and threatened,

harassed, and intimidated school employees”. Bell v. Itawamba Cnty. Sch.

Bd., No. 1-11-CV-56, order at 9 (N.D. Miss. 15 Mar. 2012). The court also held

the rap recording “in fact caused a material and/or substantial disruption at

school and . . . it was reasonably foreseeable to school officials the song would

cause such a disruption”. Id. Moreover, the court held: (1) the individual

defendants were entitled to qualified immunity; and (2) Bell’s mother could not

show a violation of her Fourteenth Amendment rights. Id. at 12.

II.

As discussed above, the majority affirms these last two holdings. I

dissent only from its (1) vacating the summary judgment granted the school

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board on Bell’s First Amendment claim and (2) rendering judgment for him on

that claim. The judgment awarded the school board on the First Amendment

claim should be affirmed. In the alternative, that claim should be remanded

to district court for trial.

A summary judgment is reviewed de novo, applying the same standard

as did the district court. E.g., Feist v. La., Dep’t of Justice, Office of the Att’y

Gen., 730 F.3d 450, 452 (5th Cir. 2013) (citation omitted). Summary judgment

is proper when “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law”. Fed. R. Civ. P. 56(a). “A

genuine dispute of fact exists when evidence is sufficient for a reasonable jury

to return a verdict for the non-moving party, and a fact is material if it might

affect the outcome of the suit.” Willis v. Cleco Corp., 749 F.3d 314, 317 (5th

Cir. 2014) (internal citation and quotation marks omitted) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

In determining whether to grant summary judgment, the court, in its de

novo review, views the evidence in the light most favorable to the non-movant.

E.g., Dameware Dev., LLC v. Am. Gen. Life Ins. Co., 688 F.3d 203, 206–07 (5th

Cir. 2012) (citation omitted). Consistent with that, when, as here, cross-

motions for summary judgment are in play, “we review [de novo] each party’s

motion independently, viewing the evidence and inferences in the light most

favorable to the nonmoving party”. Cooley v. Hous. Auth. of Slidell, 747 F.3d

295, 298 (5th Cir. 2014) (internal quotation marks omitted) (quoting Ford

Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001)).

“Although on summary judgment the record is reviewed de novo, this court . . .

will not consider evidence . . . not presented to the district court”, but “we may

affirm the . . . decision on any basis presented to the district court”. Am.

Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896 (5th Cir. 2013)

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(citations and internal quotation marks omitted).

The summary-judgment record at hand includes, inter alia: (1)

affidavits of four students regarding the coaches’ supposed conduct; (2)

screenshots of Bell’s Facebook page; (3) a transcription of the rap item

submitted by the school board (“ruler” version); (4) a transcription of the rap

item submitted by Bell (“rueger [sic]” version); (5) the letter from the

superintendent to Bell’s mother informing the Bells of a hearing before the

disciplinary committee; (6) the digital recording of the rap recording; (7) the

first screenshot of Bell’s Facebook “wall”; (8) the second screenshot of Bell’s

Facebook “wall”; (9) the disciplinary-committee’s findings; (10) the

disciplinary-committee-hearing minutes and the all-important CD recording of

that hearing; (11) the school-board attorney’s letter to Bell’s mother informing

her of the disciplinary-committee’s findings; (12) the school-board-hearing

minutes; (13) the school-district discipline policy; (14) the school-board

attorney’s letter to Bell’s mother informing her of the school-board’s

determination; and (15) the transcript of the preliminary-injunction hearing.

For obvious reasons, in analyzing school-board decisions, deference must

be accorded the school-board’s determinations. Callahan v. Price, 505 F.2d

83, 87 (5th Cir. 1974); see also Wood v. Strickland, 420 U.S. 308, 326 (1975) (“It

is not the role of the federal courts to set aside decisions of school

administrators which the court may view as lacking a basis in wisdom or

compassion.”), overruled on other grounds, Harlow v. Fitzgerald, 457 U.S. 800

(1982); Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960, 967 (5th Cir. 1972)

(citing cases) (“That courts should not interfere with the day-to-day operations

of schools is a platitudinous but eminently sound maxim which this court has

reaffirmed on many occasions.”).

A.

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It is well-established that students do not forfeit their First Amendment

rights to freedom of speech and expression when they enter school. Tinker v.

Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). The First

Amendment does not, however, guarantee students absolute rights to such

freedoms. As Justice Oliver Wendell Holmes, Jr., wrote nearly a century ago:

“[T]he character of every act depends upon the circumstances in which it is

done. The most stringent protection of free speech would not protect a man

in falsely shouting fire in a theatre and causing a panic.” Schenck v. United

States, 249 U.S. 47, 52 (1919) (citation omitted). Bell’s rap recording, through

which the school board found he threatened, intimidated, and harassed two

members of the faculty at his high school, was intentionally disseminated

through Facebook and YouTube. Accordingly, on two bases (true threat and

substantial disruption), the threatening, harassing, and intimidating portions

of Bell’s incredibly violent, vulgar, and profane rap recording do not enjoy the

protection of the First Amendment.

1.

The school-board’s decision should be upheld under the “true threat”

analysis originally introduced in Watts v. United States, 394 U.S. 705 (1969).

Although the First Amendment generally protects speech, “the government

can proscribe a true threat of violence without offending the First

Amendment”. Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 616 (5th Cir.

2004). “[A] prohibition on true threats ‘protect[s] individuals from the fear of

violence’ and ‘from the disruption that fear engenders,’ in addition to protecting

people ‘from the possibility that the threatened violence will occur’”. Virginia

v. Black, 538 U.S. 343, 360 (2003) (alteration in original) (quoting R.A.V. v.

City of St. Paul, Minn., 505 U.S. 377, 388 (1992)). “Speech is a true threat

and therefore unprotected if an objectively reasonable person would interpret

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the speech as a serious expression of an intent to cause a present or future

harm.” Porter, 393 F.3d at 616 (citation and internal quotation marks omitted).

Moreover, intimidation is a form of true threat. See Black, 538 U.S. at 360

(“Intimidation in the constitutionally proscribable sense of the word is a type

of true threat, where a speaker directs a threat to a person or group of persons

with the intent of placing the victim in fear of bodily harm or death.”).

The true-threat analysis was further explained in Doe v. Pulaski County

Special School District, which provided a two-step test: (1) whether the

speaker “intentionally or knowingly communicated the statement in question

to someone” including “a third party”; and (2) “whether a reasonable person

would interpret the purported threat as a serious expression of an intent to

cause a present or future harm”. 306 F.3d 616, 622, 624 (8th Cir. 2002) (en

banc). Our court affirmatively cited Doe as an “illustrative application” of the

true-threat test in the context of school speech. Porter, 393 F.3d at 616–18

(finding off-campus speech at issue not intentionally communicated to anyone).

In our de novo review of the cross-motions for summary judgment, the question

then becomes whether, pursuant to the standard set by Rule 56(a), each prong

of the two-step test is satisfied.

a.

Regarding the first step, and contrary to the position taken by the

majority, there is no genuine dispute that Bell intentionally and knowingly

communicated the rap recording in a way that it would reach the school. Bell

first posted the rap recording to his open Facebook account, accessible to

anyone with a Facebook account, and not limited to his Facebook 1,380-

member “friend” group. At the disciplinary-committee hearing, he stated he

knew “students and stuff would hear it because . . . students all have

Facebook”. And, Bell posted a revised version of the rap recording to

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YouTube, which offers unlimited access. When asked at the disciplinary-

committee hearing why he did not discuss his allegations with the school

principal, he stated that such conversations would have no impact, but “[i]f I

do the song, they’re going to listen to it”. It is undisputed that Bell

intentionally targeted the rap recording to students and administrators alike,

hoping the latter would take action after hearing the recording.

b.

The next question in this two-step analysis is whether a reasonable

person would view the threatening speech as “an intent to cause a present or

future threat”. Doe, 306 F.3d at 622. This is an issue of law. See generally

id. at 616–26 (rendering judgment as a matter of law, holding as objectively

reasonable the determination that the threat constituted a “true threat”).

As stated, there can be no question that an objectively reasonable person

would interpret the rap recording as a true threat. When a student

intentionally and publicly states that an educator will be “capped” (shot), have

a pistol put down his mouth, and hit with a pistol, an objectively reasonable

school administrator may interpret these words to constitute a true threat.

“School administrators must be permitted to react quickly and decisively to

address a threat of physical violence . . . without worrying that they will have

to face years of litigation second-guessing their judgment as to whether the

threat posed a real risk of substantial disturbance.” Ponce v. Socorro Indep.

Sch. Dist., 508 F.3d 765, 772 (5th Cir. 2007).

Supporting how an objectively reasonable person would view the

comments, Coach W. testified at the preliminary-injunction hearing that he

took the rap recording “literally”, felt “scared”, reported the rap recording to

the principal immediately upon hearing it, and took extra safety measures

after hearing the rap recording. Consistent with that testimony, Bell’s expert

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witness in the field of rapping testified at the preliminary-injunction hearing

that, if a rap item names an individual directly preceding a threat, “it would

definitely be cause for conversation with the [rapper], absolutely”. And, as

discussed earlier, Bell’s mother even received comments from community

members (outside the school setting) who had heard the rap recording and

believed the language about putting a pistol down someone’s mouth would

constitute a direct threat. After listening to the statements in the rap

recording, the school board determined unanimously “that [Bell] did threaten,

harass, and intimidate school employees”. Therefore, the rap recording was

understood, both subjectively by one of the coaches and objectively by the

school board, to be a threat.

Bell implores this court to interpret his threats as simply artistic

expression. The majority, likewise, contends at 33 and 35 that, because Bell’s

threats were embedded in some protected speech, his threats were at worst

hyperbolic or metaphoric and that such speech does not constitute a true

threat. But the nature of the speech and Bell’s own admissions belie this

contention. As discussed supra, in the written version of the rap recording

relied upon by Bell, he threatened, inter alia, to “hit [a coach] with my rueger

[sic]”, referring, as noted supra, to the firearms manufacturer Sturm, Ruger &

Co. (Emphasis added.) In the YouTube version, Bell also stated he was

writing about “real-life experience”. By his own admission, then, not all of the

rap recording was meant to be rhetorical; instead, Bell urges only the portions

involving threats, harassment, and intimidation fit that category.

Regardless, under the true-threat analysis, whether Bell intended the

rap recording to be taken as a threat is immaterial. Porter, 393 F.3d at 616.

The same is true for whether he was capable of carrying out the threat. Id. at

616 n.25 (discussing Doe’s instruction to disregard subjective ability to carry

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out threat). The school board determined unanimously that the rap recording

threatened, harassed, and intimidated the coaches. Accordingly, Bell was

suspended for Offense 16 (threatening, harassing, and intimidating) of the

severe-disruptions section of the school-district disciplinary policy, and in

violation of state law. (Two potential state-law examples, among many, are

Mississippi Code Annotated § 37-11-21 (making it a misdemeanor to abuse

teachers) and § 97-45-17 (making it a felony to post messages through

electronic media for the purpose of causing an injury to another).)

Incredibly, the majority seems to believe that making such threats in a

rap recording obscures the fact that Bell’s words could reasonably be

considered to place two members of the school’s faculty in danger, and that

taking disciplinary action against him for such conduct violates his First

Amendment rights. But, again, “rapping” has nothing to do with this; a

student who speaks the words Bell spoke, regardless of the manner of speech,

threatens teachers. The majority at 10–11, and in note 27, urges that, by

Bell’s stating he was writing about real-life, he was referring to his personal

experiences at school regarding the allegations about the coaches, and that his

“real-life” statement should not be construed to imply a serious intent to carry

out the threats in his recording. Again, the public-school system “relies

necessarily upon the discretion and judgment of school administrators and

school board members”. Wood, 420 U.S. at 326. Therefore, as noted supra,

“[i]t is not the role of the federal courts to set aside decisions of school

administrators which the court may view as lacking a basis in wisdom or

compassion”. Id.; see also Morse, 551 U.S. at 425 (Alito, J., concurring) (“[D]ue

to the special features of the school environment, school officials must have

greater authority to intervene before speech leads to violence”.).

The majority at 34, in note 49, emphasizes that, based on numerous

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factors such as the claimed indirect and allegedly conditional nature of the

threat, and the claimed lack of evidence demonstrating a violent

predisposition, Bell’s speech could not have been considered a true threat as a

matter of law. The question is not which interpretation is more reasonable;

rather, it is whether an objectively reasonable person could interpret the

speech as a true threat. (Along that line, and as the summary-judgment

evidence demonstrates, Coach W., the school board, and other members in the

community who contacted Bell’s mother understood the speech to be a threat.)

The majority at 37, in note 50, accuses this dissent of failing to give “due

consideration to the consequences on social and political discourse” by this

dissent’s labeling Bell’s speech a “true threat”. The majority equates Bell’s

threats to other forms of pure political speech and, relying on the facts of Watts,

claims Bell’s speech could not have reasonably been interpreted as a true

threat. (At 33–34, in an absurd metaphor, the majority claims that no

reasonable person would conclude performers murdered, or intended to

murder, the characters in their well-known songs based on their lyrics.

Needless to say, those songs involved fictional characters, not real-life

educators during an extremely tragic period of school violence in this Nation’s

history. This comparison by the majority conveys an attitude that not only

ignores this tragic period but also reflects an almost callous indifference

toward it.)

Further, the majority glosses over the stark differences between this case

and Watts. In Watts, at a Vietnam War protest rally, the speaker made, for

effect, hyperbolic “threats” against the President, stating, “If they ever make

me carry a rifle the first man I want to get in my sights is L.B.J.” 394 U.S. at

706. Here, unlike in Watts, and according to his rap recording, Bell knew

these coaches, and interacted with, and had access to, them as a student.

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Additionally, Bell did not speak abstractly; rather, he advocated their being

killed with a specific brand of gun, and in a specific way. Bell’s access to the

coaches, and the specificity with which he threatened, intimidated, and

harassed them, mandate an outcome different from that reached by the

majority. As discussed, the First Amendment must give way in the face of

speech reasonably interpreted as imminent threats of danger.

Finally, this court should be even more reluctant to overrule the

judgment of school officials in the light of the above-described, widespread gun

violence throughout our Nation. Combining Bell’s intentional communication

of the rap recording toward students and administrators with the school

board’s objective determination that Bell threatened, harassed, and

intimidated two teachers, there is no genuine dispute that Bell’s threats satisfy

the true-threat test and, therefore, are unprotected speech.

2.

In the alternative, and pursuant to the Tinker “substantial-disruption”

test, the school-board’s decision did not violate Bell’s First Amendment rights.

In general, our court applies the Tinker analysis to “school regulations directed

at specific student viewpoints”. Porter, 393 F.3d at 615; see also Wynar, 728

F.3d at 1069 (“[W]hen faced with an identifiable threat of school violence,

schools may take disciplinary action in response to off-campus speech that

meets the requirements of Tinker.”); Wisniewski v. Bd. of Educ. of the

Weedsport Cent. Sch. Dist., 494 F.3d 34, 38 (2d Cir. 2007); Boim v. Fulton Cnty.

Sch. Dist., 494 F.3d 978, 982–83 (11th Cir. 2007) (analyzing threats of violence

to individual teachers under Tinker). Tinker allows a school board to

discipline a student for speech that either causes a substantial disruption or is

reasonably forecast to cause one. 393 U.S. at 514. In that regard, as

discussed, judicial review is necessarily deferential: “School administrators

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must be permitted to react quickly and decisively to address a threat of

physical violence . . . without worrying that they will have to face years of

litigation second-guessing their judgment as to whether the threat posed a real

risk of substantial disturbance”. Ponce, 508 F.3d at 772.

The majority contends the rap recording is “off-campus” speech, noting

throughout its recitation of the facts that, inter alia, Bell composed, recorded,

and uploaded the recording off-campus. Even assuming the “on-campus/off-

campus” distinction remains relevant today (it does not, as discussed infra),

Bell’s intent for the speech to reach members of the community (admitted by

Bell at the disciplinary-committee hearing and recognized by the majority at

4), evinced by his posting the recording publicly to Facebook and YouTube,

makes Bell’s speech the functional equivalent of on-campus speech. Treating

it otherwise is a classic, and forbidden, elevation of form over substance.

Notwithstanding its assuming the Tinker test applies in this instance,

the majority claims at 22–23, in notes 37 and 38, that our precedent only leaves

open the possibility of applying Tinker to off-campus speech. But, contrary to

the majority’s understanding, this is not an open issue: our court has applied

Tinker to off-campus speech when, as in this instance, the speech reached the

school. In a post-Tinker decision, Sullivan v. Houston Independent School

District, our court held that, where a student sold vulgar newspapers off-

campus, defendant’s “conduct . . . outweigh[ed] his claim of First Amendment

protection”. 475 F.2d 1071, 1075 (5th Cir. 1973) (“This case arises from the

unauthorized distribution of an underground newspaper near a high school

campus, and presents the now-familiar clash between claims of First

Amendment protection on the one hand and the interests of school boards in

maintaining an atmosphere in the public schools conducive to learning, on the

other.” (emphasis added)). Our court reasoned: “In the years since Tinker

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was decided courts have refused to accord constitutional protection to the

actions of students who blatantly and deliberately flout school regulations and

defy school authorities”, proceeding to cite numerous cases applying Tinker to

similar speech. Id. at 1076. Although the court was careful to emphasize the

reasonable responses of the school and the unhelpful conduct by defendant in

the face of such responses, the court also emphasized defendant’s “conduct

[could] hardly be characterized as the pristine, passive acts of protest ‘akin to

pure speech’ involved in Tinker”. Id. (citation omitted).

Likewise, the contrast here could not be greater. Bell’s rap recording is

so far removed from the armbands worn in Tinker, protesting the war in

Vietnam, that his seeking protection under the First Amendment, based on the

test in Tinker, borders on being frivolous. Consistent with Justice Black’s

warning in Tinker, the majority’s allowing Bell to threaten, intimidate, and

harass two teachers, by holding the comments are protected speech, signals a

“revolutionary era of permissiveness in this country fostered by the judiciary”.

Tinker, 393 U.S. at 518 (Black, J., dissenting).

Further, our court’s decision in 2004 in Porter supports this conclusion.

The Porter court, in noting other circuits’ application of Tinker to off-campus

activities, interpreted Sullivan as applying Tinker to off-campus speech. 393

F.3d at 615 n.22, 619 n.40 (stating “a number of courts have applied the test in

Tinker when analyzing off-campus speech brought onto the school campus”,

citing Sullivan).

The majority at 23, in note 39, accuses this dissent of “patent[ly]

misreading” Sullivan and Porter. In a footnote devoid of any relevant legal

analysis, the majority not only intentionally ignores Sullivan’s reliance on

Tinker in reaching its conclusion, but implies the court made an ad hoc

decision. By determining the school’s prior-approval regulation was

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constitutional, the Sullivan court concluded that Tinker applies to off-campus

speech; the court could not have reached its conclusion without applying Tinker

to the off-campus speech. 475 F.2d at 1076–77. The majority’s assertions

that our court has not previously applied Tinker to off-campus speech is an

egregious misrepresentation of our precedent.

Furthermore, the majority at 27–30 erroneously reads Ponce as limiting

the application of Tinker in the school context to Columbine-like situations.

Ponce is only one of our court’s decisions applying Tinker. The distinction

espoused by the majority ignores the paramount consideration that any threat,

harassment, and intimidation of a teacher in a school environment must be

taken seriously. Limiting an administrator’s ability to act on threats in only

Columbine-like, mass-shooting circumstances is a recipe for disaster.

But, even assuming our court has not previously applied Tinker to off-

campus speech, in the light of the facts underlying this appeal, technological

developments, as discussed supra, have rendered the distinction obsolete.

The pervasive and omnipresent nature of the Internet, in many respects, has

obfuscated the “on-campus/off-campus” distinction read into Tinker by some

courts. Accord Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d

205, 220–21 (3d Cir. 2011) (Jordan, J., concurring) (“For better or worse,

wireless internet access, smart phones, tablet computers, [and] social

networking . . . give an omnipresence to speech that makes any effort to trace

First Amendment boundaries along the physical boundaries of a school campus

a recipe for serious problems in our public schools.”). With students having

instant access to the Internet anywhere, drawing such an arbitrary distinction

both tortures logic and ignores history.

Skirting the issue, the majority at 22–23, in note 37, advocates that,

despite rapidly changing technology, school administrators are powerless to

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act absent specific Supreme Court guidance. Once again, this flies in the face

of the absolute necessity for school officials to act promptly to protect their

students and teachers against threats, harassment, and intimidation. To

keep pace with technological developments, “speech” made over the Internet

(whether through an on-campus or off-campus computer) that is intentionally

directed at the school cannot be ignored based solely on the original source.

The majority disagrees, citing Morse, 551 U.S. at 424 (Alito, J., concurring), for

the proposition that “[i]t is a dangerous fiction to pretend that parents simply

delegate their authority–including their authority to determine what their

children may say and hear–to public school authorities”, and Shanley, 462 F.2d

at 964, for the proposition that a school board’s unreasonable

“assumption of authority is an unconstitutional usurpation of the First

Amendment”. Obviously, these general principles do not conflict with the

issue at hand.

Here, Bell targeted his rap recording at the school by posting it on

Facebook and YouTube, admittedly knowing students, and admittedly hoping

administrators, would listen to it. The majority states at 25 that the school’s

prohibition of student cell phones on-campus made it unlikely the recording

would be heard on-campus. This assertion is not supported by the summary-

judgment record. For example, in one instance, the rap recording reached the

school through a student cell phone. Although Bell stated at the disciplinary-

committee hearing that he never encouraged anyone at school to listen to the

rap recording, he also stated he knew students would listen to it, and that part

of his motivation was to “increase awareness of the situation”. Therefore,

Tinker applies. The majority’s merely assuming that it does apply detracts

from the very important considerations at play in this appeal.

Under Tinker, “school officials may regulate student speech when they

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can demonstrate that such speech woul

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