The Supreme Court has a lot to worry about these days, like a year plus of finding out first hand what can happen (or not happen) to your ability to make precedent when you have a 4-4 deadlock on the Court. So its recent decision to deny review in the case of Bell v. Itawamba County School Board probably didn’t register much of a blip on the Supremes’ radar. But for school leaders and EdTech legal nerds like myself, the Court’s decision is a big deal and raises the important question: How do school leaders approach discipline of students’ off-campus, online misconduct in light of the Court’s denial of the petition for review?
The case revolves around Mississippi high school student Taylor Bell, who raps under the name T-Bizzle. I wrote about the case back in 2015, explaining the facts as such:
In Bell v. Itawamba County School Board, the Fifth Circuit, which has jurisdiction over Louisiana, Mississippi, and Texas, addressed a rap song posted by a Mississippi high school senior, Taylor Bell, on his publicly accessible Facebook page and YouTube. The bulk of the song criticized two coaches at the school, who were named in the song, for allegedly engaging in improper sexual relations with female students. The song also included four references to violent acts that would be carried out against the coaches, however, presumably by Bell.
For those who are interested, you can listen to T-Bizzle’s song here.
As numerous other courts across the country have done, the Fifth Circuit applied the Supreme Court’s 1969 case of Tinker v. Des Moines Independent Community School District, to the case. Tinker dealt with on-campus speech in the form of wearing black armbands to protest the Vietnam war. Tinker says that if a student’s conduct causes or could reasonably be foreseen to cause a substantial disruption to the school environment or invade the rights of others, it can be subject to discipline without violating the First Amendment’s protections of free speech. Since Tinker really dealt with on-campus speech, most courts to apply this standard to off-campus, online misconduct have also worked in a “nexus” standard to their test as well, requiring that the speech have a sufficient connection to school to justify discipline. The Fifth Circuit applied these standards and found that Bell’s song violated school policies against threats, harassment, and intimidation; was intentionally directed at the school community; and created a reasonable risk of a substantial disruption. The Fifth Circuit thus upheld the school’s decision to suspend Bell under Tinker.
The problem is that although there were some threatening elements to Bell’s lyrics, his rap song included what some describe as true political commentary. Hey, even some high-profile rappers (T.I., Killer Mike, and this Southern girl’s favorite, Big Boi from Outkast) wrote to the Court explaining why they believe Bell’s song should be protected by the First Amendment. The song also was not intentionally injected into the school community by Bell–it was merely about school. These facts led many to argue that the Supreme Court should use the case as an opportunity to address the apparent confusion among lower courts on the issue of when, how, and under what circumstances schools can discipline students for off-campus internet speech. This is how Slate describes the concern:
Federal and state courts across the country are totally, hopelessly fractured on the question of First Amendment protection for students’ online speech. Some federal appeals courts and state supreme courts protect it vigorously. Others barely protect it at all. Everybody seemed to agree a decade ago that the Supreme Court needed to weigh in. It still hasn’t, and so the 5th Circuit wandered its way into a terrible decision without contravening any precedent.
Despite these concerns, the Supreme Court declined the opportunity to weigh in on the case.
Now, I don’t really agree with those who cry that the sky is falling and that school leaders are hopelessly lost without a Supreme Court decision on these issues. Sure, some courts have taken a narrower view of discipline rights than the Fifth Circuit, and schools in those jurisdictions should of course respect and follow those precedents. But in the vast majority of jurisdictions, the highest appellate court has either applied the Tinker standard to off-campus, online speech or has been silent on the question (in Illinois, we don’t even have a lower court decision addressing the issue at all). In those jurisdictions, it’s still safe for school leaders to assume that if a student’s off-campus, online misconduct violates a school rule, has a sufficient nexus (or connection) to the school environment, and causes or reasonably could be foreseen to cause a material and substantial disruption to the school environment, the student can be disciplined. I realize that’s not a bulletproof tactic, particularly if the speech is not overtly threatening or could be described as valid political or social commentary. Indeed, free speech advocates who wrote briefs in support of Bell in the case argued that Tinker should not even apply to off-campus, online speech. But for now, as the Fifth Circuit explained in its decision in Bell, without a Supreme Court decision on point schools must continue to apply the law as the lower courts are developing it, as fractured as that may be. And that means that even a rap song like T-Bizzle’s, which I agree did include some commentary that could be described as political, is still fair game for discipline, especially if it contains threatening content aimed toward members of the school community.