The opinion
BROWN, J., dissenting.
This case involves the extent of a high school senior’s free-speech rights under the Arkansas Constitution. Because of the subject matter, this case has far-reaching implications. The majority of this court, however, refuses to consider the case on the basis that the student (Payne Walters) and his parents have not sufficiently “developed” the free-speech argument in this appeal. I disagree and would decide the free-speech issue presented to this court.
The Walters family brought their complaint under the Arkansas Civil Rights Act. See Ark.Code Ann. § 16-123-105 (Repl.2006). They claim that Payne’s playing the audio clip 1 sfrom his cell phone (a female student’s comment: “Oh gosh, I’m horny!”) is protected speech. As the majority opinion candidly admits, the Arkansas Civil Rights Act specifically directs that the courts of this state, when construing the Arkansas act for a deprivation of rights under the Arkansas Constitution, may look to federal decisions which interpret the federal Civil Rights Act for guidance. Id. § 16 — 123—105(c). In their brief to this court, the Walters family argues nine federal cases to support their position. 1 Seven of those cases are United States Supreme Court opinions. This citation to federal cases is entirely appropriate. The Horatio School District does not contend otherwise. In fact, the School District also relies on multiple federal cases for its argument as well as cases from other states. The School District certainly does not take the position that the free-speech issue has not been developed by the majority.
It is difficult to fully grasp what prevents the majority from deciding this case. It first states that the Walters family has cited solely to federal cases. As already mentioned, the Arkansas Civil Rights Act expressly allows our courts to look to federal cases “for guidance.” The majority then, inexplicably, states that this court should not “slavishly follow” federal authority. No one disputes that, and neither party has advanced the notion that federal law should absolutely control the issues presented. Rather, it is offered for guidance.
[,The majority further takes issue with the fact that no Arkansas cases are argued by the Walters family on the student free-speech issue. That undoubtedly is because there are none. This case presents the rare opportunity for this court to address a student free-speech argument under Article 2, section 6 of the Arkansas Constitution, which provides for liberty of the press and speech, and to develop Arkansas constitutional jurisprudence in this area. 2 And yet, the majority refrains from doing so.
I would not penalize the Walters family for failing to cite Arkansas student free-speech cases that well may be nonexistent. There is enough presented for this court to decide the student free-speech issue, one way or the other, in terms of Article 2, section 6 of the Arkansas Constitution and section 16-123-105 of the Arkansas Civil Rights Act as well as federal and out-of-state cases. For all of these reasons, I dissent.
. Morse v. Frederick, 551 U.S. 393 , 127 S.Ct. 2618 , 168 L.Ed.2d 290 (2007); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 , 108 S.Ct. 562 , 98 L.Ed.2d 592 (1988); Bethel Sch. Dist. v. Fraser, 478 U.S. 675 , 106 S.Ct. 3159 , 92 L.Ed.2d 549 (1986); Bd. of Educ. v. Pico, 457 U.S. 853 , 102 S.Ct. 2799 , 73 L.Ed.2d 435 (1982); Epperson v. Arkansas, 393 U.S. 97 , 89 S.Ct. 266 , 21 L.Ed.2d 228 (1968); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1968); Thomas v. Collins, 323 U.S. 516 , 65 S.Ct. 315 , 89 L.Ed. 430 (1945); Bystrom v. Fridley High Sch., 822 F.2d 747 (8th Cir.1987); Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043 , 1057 (2d Cir.1979).
. In Smith v. Brt, 363 Ark. 126 , 211 S.W.3d 485 (2005), this court noted that the chief of police had clearly alleged a violation of the right to freedom of speech under the Arkansas Constitution. Ark. Const. art 2, § 6.