Bell et al v. Itawamba County School Board et al
Filing
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MEMORANDUM OPINION re 42 Order on Motion for Summary Judgment,. Signed by Neal B. Biggers on 03/14/2012. (hm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
TAYLOR BELL and DORA BELL,
Individually and as Mother of Taylor Bell,
VS.
PLAINTIFFS,
CIVIL ACTION NO. 1:11CV00056-NBB-DAS
ITAWAMBA COUNTY SCHOOL BOARD,
TERESA MCNEECE, Superintendent of
Education for Itawamba County, Individually
and in Her Official Capacity, and TRAE WIYGUL,
Principal of Itawamba Agricultural High School
Individually and in His Official Capacity,
DEFENDANTS.
MEMORANDUM OPINION
These matters come before the court upon the parties’ cross-motions for summary judgment.
After due consideration of the motions and the responses filed thereto, the court is prepared to rule.
I. FACTUAL BACKGROUND
In August 2001, while a senior at Itawamba Agricultural School, Taylor Bell composed,
sang, and recorded a rap song which he published for over 1,300 “friends” on Facebook.com and
for an unlimited audience on YouTube.com. In clearly vulgar language, the rap song criticizes two
coaches at school – Coach Wildmon and Coach Rainey – by alleging that both of them had
improper contact with female students. The last two verses include the phrases:(1) “looking down
girls’ shirts / drool running down your mouth / messing with wrong one / going to get a pistol down
your mouth” and (2) “middle fingers up if you can’t stand that nigga / middle fingers up if you want
to cap that nigga.”1
1
For purposes of clarity, there are no allegations of racism in relation to the use of the
term “nigga” throughout the subject song.
1
After the school became aware of the song, Taylor Bell was taken out of class on January
7, 2011 and met with Principal Trae Wiygul, District Superintendent Teresa McNeese, and the
school board attorney who accused him of making threats and false allegations. Taylor Bell denied
making threats but confirmed that the allegations of improper contact with female students were
true. After the meeting, Principal Wiygul drove Taylor Bell to a friend’s house rather than allowing
him to attend his remaining classes for the day.
The school cancelled classes until Friday, January 14, 2011 due to inclement weather. On
that Friday Mr. Bell returned to school. After his last class that day, the assistant principal’s office
called for Taylor Bell and told him he would be suspended indefinitely pending a hearing.
The Disciplinary Committee of the Itawamba County School Board held a hearing on
January 26, 2011 after providing notice to Taylor Bell and his mother Dora Bell via letter. Taylor
Bell attended the hearing with his mother and his own counsel. The Committee concluded that
Taylor’s conduct of writing and recording the song and publishing the song on Facebook.com and
YouTube.com constituted “harassment and intimidation of teachers and possible threats against
teachers.” The Committee decided to suspend Taylor Bell for seven days and to transfer him to an
alternative school for the five weeks remaining of the nine-week school period.
On February 7, 2011 the Itawamba County School Board held a hearing on Taylor Bell’s
appeal of the Disciplinary Committee’s findings and punishment. The school board upheld the
punishment and affirmed that Taylor Bell “threatened, harassed, and intimidated school employees”
with the publication of his song.
One week later on February 14, 2011 Dora Bell filed her Complaint on behalf of her son
Taylor Bell and herself. Count 1 alleges that Taylor Bell’s punishment violated his First Amendment
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right to free speech. Count 2 alleges that his punishment violated Dora Bell’s parenting rights
guaranteed by the Fourteenth Amendment Due Process Clause. Count 3 alleges that Taylor Bell’s
speech was entitled to heightened protection as speech on a matter of public concern. Count 4
alleges that Taylor’s punishment for exercising his right to free speech violated Mississippi law.
On March 2, 2011 the plaintiffs filed a motion for preliminary injunction seeking to require
the Itawamba School Board to allow Taylor Bell to return from the alternative school before the
required five week period expired pursuant to his punishment. This court held a hearing on March
10, 2011. On March 14, 2011 the court entered an Order denying the motion for preliminary
injunction as moot since the plaintiff’s time in alternative school was set to expire on March 11,
2011 – one day after the hearing.
By Order of May 9, 2011 the court instructed the parties to file cross motions for summary
judgment within 90 days. The motions for summary judgment have been fully briefed since August
2011. Neither party argued Count 3 as a separate count, but rather as part and parcel to the free
speech claim. Furthermore, since the briefs do not discuss the alleged violation of Mississippi laws
protecting free speech, the court considers Count 4 as abandoned. Accordingly, at issue are Counts
1 and 2.
The Order of May 9, 2011 also concluded that: “Having conducted a case management
conference and having discussed the case with the parties, it appears there are no factual issues and
that this case should be resolved by summary judgment.” The issues remaining are matters of law
which will be resolved by applying the law to the undisputed facts.
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II. DISCUSSION
A. Summary Judgment Standard
Summary judgment should be entered only if "[t]here is no genuine issue as to any material
fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c)
(emphasis added). The primary focus for the court in ruling upon a motion for summary judgment
is usually whether there is at least one issue of material fact warranting a trial. In this matter,
however, the parties have agreed that there are no remaining issues of fact. Thus, it falls upon the
court to determine which party is entitled to judgment “as a matter law.”
B. First Amendment Claim
Students do not “shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
However, the constitutional rights of students in public school “are not automatically coextensive
with the rights of adults in other settings.” Bethel Sch. Dist. N. 403 v. Fraser, 478 U.S. 675, 682
(1986). Though free speech rights are available to teachers and students in public schools, such
rights must be “applied in light of the special circumstances of the school environment.” Tinker, 393
U.S. at 506.
Pursuant to the U.S. Supreme Court’s decision in Tinker, “conduct by a student, in class or
out of it which for any reason ... materially 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.” Tinker, 393 U.S. at 506 (emphasis added).
The Fifth Circuit in Porter v. Ascension Parish School Board, 393 F.3d 608 (5th Cir. 2004)
held that a student’s sketch depicting a violent siege at school could not be regulated by the school
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because it was drawn at home and not on campus, kept in his closet for two years, and only made
it to school unintentionally when his younger brother took it to school. However, the Court did not
rule in Porter that off-campus speech by students cannot be regulated by the school. Rather, the
Court specifically observed that its analysis was not in conflict with other courts having applied
Tinker to off-campus speech because “the fact that Adam’s drawing was composed off-campus and
remained off-campus for two years until it was unintentionally taken to school by his younger
brother takes the present case outside the scope of these precedents.” Porter, 393 F.3d at 615 n. 22.
In any event, as emphasized above, the 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. The Fifth Circuit in Porter appears to have added a requirement that the speech be intended
to reach school. In this case, Taylor Bell clearly intended to publish to the public the content of the
song as evidenced by his posting of the song on Facebook.com with at least 1,300 “friends,” many
of whom were fellow students, and to an unlimited, world-wide audience on YouTube.com.
Accordingly, the Tinker standard applies to Taylor Bell’s song without regard to whether it was
written, produced, and published outside of school.
Importantly, courts have held that the Tinker material or substantial disruption standard can
also apply to allow regulation of student speech when the disruption is reasonably foreseeable.
In Wisniewski v. Board of Education of Weedsport Central School District, 494 F.3d 34 (2d
Cir. 2007), a student was suspended after instant messaging on the internet at home a picture
displaying a drawing of a pistol firing a bullet at a person’s head, above which were dots of blood,
and beneath was the word “kill” followed by the name of the student’s English teacher. The student
was not on school property and only sent the images to his friends.
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The Second Circuit used the Tinker substantial disruption standard rather than the “true
threat” standard enunciated in Watts2, concluding that school officials had more authority over
students’ speech than the government had over the adult plaintiff in Watts. Wisniewski, 494 F.3d at
38.
The Second Circuit in Wisniewski concluded:
We are in agreement ... that, on the undisputed facts, it was reasonably foreseeable
that the IM icon would come to the attention of school authorities and the teacher
whom the icon depicted being shot. The potentially threatening content of the icon
and the extensive distribution of it, which encompassed 15 recipients, including some
of Aaron's classmates, during a three-week circulation period, made this risk at least
foreseeable to a reasonable person, if not inevitable. And there can be no doubt that
the icon, once made known to the teacher and other school officials, would
foreseeably create a risk of substantial disruption within the school environment.
Wisniewski, 494 F.3d at 39-40 (emphasis added).
In Boim v. Fulton County School District, the Eleventh Circuit held that violent student
speech was not protected after concluding it “clearly caused and was reasonably likely to further
cause a material and substantial disruption” at the school. 494 F.3d 978, 983 (11th Cir. 2007).
The student in Boim wrote a story about a dream she allegedly had of shooting her teacher.
The student wrote the story in her notebook and gave the notebook to another student while at
school. Her teacher, who may have been the target of the story, gained possession of the story while
in class and discussed it with a school administrator shortly after school. On the next day, the teacher
brought the story to the administrator who then consulted the school’s police officer. The school
2
In Watts v. United States, 394 U.S. 705, 707 (1969), the U.S. Supreme Court held that
the defendant's alleged statement that he would refuse induction into armed forces and ‘if they
ever make me carry a rifle the first man I want in my sights is L.B.J.’ did not amount to a “true
threat” against the life of the President of the United States. Rather, the statement was held to be
hyperbole and was protected free speech.
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pulled the student from class and called her parents. At the meeting, the student denied the story was
serious and her parents supported her. The school sent the student home. The principal continued
the investigation out of concerns of prior violence in other schools such as Columbine. During this
investigation, the teacher was shown the narrative and said he felt threatened. The school suspended
the student for ten days and then expelled her. The district superintendent, however, overturned the
expulsion but upheld the suspension.
The Eleventh Circuit in Boim observed that there is “no First Amendment right allowing a
student to knowingly make comments, whether oral or written, that reasonably could be perceived
as a threat of school violence, whether general or specific, while on school property during the
school day.” Boim, 494 F.3d at 984. Though the Court referenced only on-campus speech, the
ultimate conclusion of the court is equally applicable to off-campus student speech as explicitly
recognized in Tinker. The Eleventh Circuit concluded:
Rachel’s first-person narrative could reasonably be construed as a threat of physical
violence against her sixth period math teacher. That Rachel does not appear to have
purposely disseminated the narrative is immaterial in this context. By taking the
narrative to school and failing to exercise strict control over the notebook in which
it was written, Rachel increased the likelihood to the point of certainty that the
narrative would be seen by others, whether by other students or a teacher.
Consequently, Rachel created an appreciable risk of disrupting [her school] in a way,
regrettably, is not a mater of mere speculation or paranoia.
Boim, 494 F.3d at 985.
Thus, in Boim, the substantial or material disruption was that the content of the student’s
speech reached the school to at least one other student, and ultimately to the threatened teacher and
school officials. There was no evidence cited by the Court in Boim of any further disruption at
school - e.g., panic among students or teachers, calls by parents, closing of school, etc.
Another example where reasonably foreseeable substantial or material disruption was found
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to render student speech unprotected can be seen in D.J.M. ex rel D.M. v. Hannibal Public School
District No. 60, 647 F.3d 754 (8th Cir. 2011). This case involved a high school student who
communicated threats against fellow students to a friend via internet instant messaging. The Court
held that such speech was not protected either under the Watts “true threat” analysis or Tinker’s
material or substantial disruption analysis, given the ease with which such electronic communication
could be forwarded.
Having considered the standards discussed above, the primary questions at hand are (1)
whether Taylor Bell’s song caused or tended to cause a material and/or substantial disruption at
school or (2) whether it was reasonably foreseeable to school officials that the song would cause a
material and/or substantial disruption at school. The language used by Bell is set forth below in a
footnote.3
In addition to the many vulgar verses insulting the coaches and one of their wives as well
as specific allegations of improper conduct towards female students, the two most threatening lyrics
are: (1) “looking down girls’ shirts / drool running down your mouth / messing with wrong one /
going to get a pistol down your mouth” and (2) “middle fingers up if you can’t stand that nigga /
middle fingers up if you want to cap that nigga.”
3
As set out in the defendants’ brief, Taylor Bell’s song contained lyrics stating that Coach
Wildmon is a “dirty ass nigger,” is “fucking with the whites and now fucking with the blacks,” is a “pussy
nigger,” is “fucking with the students he just had a baby,” and is “fucking around cause his wife ain’t got
no titties.” The song also states that Coach Wildmon tells female students they “are sexy” and the reason
that the singer (Taylor Bell) quit the basketball team is because Coach Wildmon “is a pervert.”
Regarding the other coach, the song states that Coach Rainey is another “Bobby Hill” (an
Itawamba assistant football coach who was arrested and accused of sending sexually explicit material to a
minor via text message in 2009), that he is a “pervert,” that he is “fucking with juveniles,” that he came to
football practice “high,” that he is 30 years old and is “fucking with students at the school,” and that
Taylor Bell is going to “hit ya with my ruler.”
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The court agrees with the respective findings of the Disciplinary Committee and the
Itawamba School Board that the song – especially with regard to the two threatening lyrics quoted
above – constitutes “harassment and intimidation of teachers and possible threats against teachers”
and “threatened, harassed, and intimidated school employees.”
The court further concludes that the subject lyrics in 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.
In terms of actual disruption, it is undisputed that Coach Wildmon heard of the song from
a text message from his wife while he was at school. When Coach Wildmon asked the three seniors
who were sitting near him at that time whether they had heard the song, they replied that they had
and one of them allowed him to listen to the song on the student’s cellular phone. Coach Wildmon
was angered and complained to the principal. He testified at the preliminary injunction hearing that
his teaching style had been adversely affected after knowledge of the song had spread because he
perceived that students were wary of him. Coach Wildmon also testified that he felt threatened by
the references to killing him in the song. Similarly, Coach Rainey testified that his teaching style has
also been adversely affected out of fear students suspect him of inappropriate behavior.
In terms of foreseeable material or substantial disruption, it is reasonably foreseeable that
a public high school student’s song (1) that levies charges of serious sexual misconduct against two
teachers using vulgar and threatening language and (2) is published on Facebook.com to at least
1,300 “friends,” many of whom are fellow students, and the unlimited internet audience on
YouTube.com, would cause a material and substantial disruption at school.
Public school students have free speech rights under the First Amendment, but not to the
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same extent as adults. Students’ free speech rights are tempered by the school’s legitimate interest
in maintaining order. As observed by the U.S. Supreme Court in Tinker, “the Court has repeatedly
emphasized the need for affirming the comprehensive authority of the States and of school officials,
consistent with fundamental constitutional safeguards, to prescribe and control conduct in the
schools.” 393 U.S. at 507. Moreover, under Tinker, student speech may be prohibited if it causes
a material and/or substantial disruption at school, or it is reasonably foreseeable that the speech will
cause such a disruption.
The court finds that Taylor Bell’s song caused a material and/or substantial disruption and
it was reasonably foreseeable that such a disruption would occur. The song is not protected by the
First Amendment, and the school did not err in punishing Bell for publishing it to the public.
Therefore, Taylor Bell’s claim that his First Amendment rights were violated by the school should
be dismissed with prejudice.
With regard to Taylor Bell’s argument that his speech should received heightened protection
as commenting on matters of public concern, the court concludes that the plaintiff failed to
demonstrate as a matter of law that such heightened protection overrides the well-established Tinker
test in matters of public school student speech as opposed to adults. Accordingly, to the extend that
this argument was meant to constitute a separate count as referenced in Count 3 of the Complaint,
the court concludes that the claim should be dismissed with prejudice.
Finally, the court concludes that the individual defendants are entitled to qualified immunity
given that the plaintiffs have failed to demonstrate that all reasonable officials in their position
would have believed that Taylor Bell’s song was clearly protected by the First Amendment.
However, since the court has granted summary judgment on Taylor Bell’s free speech claim, the
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issue of qualified immunity is rendered moot.
B. Dora Bell’s Fourteenth Amendment Due Process Claim
Dora Bell, Taylor Bell’s mother, asserts a claim that the defendants violated her Fourteenth
Amendment due process rights to determine how to best raise, nurture, discipline, and educate her
child.
The Due Process Clause of the Fourteenth Amendment “protects the fundamental right of
parents to make decisions concerning the care, custody, and control of their children.” Troxel v.
Granville, 530 U.S. 57, 66 (2000). However, “there may be circumstances in which school
authorities, in order to maintain order and a proper educational atmosphere in the exercise of police
power, may impose standards of conduct on students that differ from those approved by some
parents.” Gruenke v. Seip, 225 F.3d 20, 304 (3d. Cir. 2000). Should the school policies conflict with
the parents’ liberty interest, the policies may only prevail if they are “tied to a compelling interest.”
Id. at 305.
Dora Bell has not demonstrated through clear authority that the temporary five-week transfer
to alternative school or the seven-day suspension were not tied to the school’s compelling interest
of a legitimate maintenance of school order.
Regarding notice, it is undisputed that Dora Bell received notice of the first hearing before
the Disciplinary Committee via letter, that the hearing was moved to accommodate her schedule,
and that she attended the hearing. She also reciived notice of the appeal hearing before the
Itawamba School Board and attended that hearing.
As to the temporary five-week transfer to an alternative school, it was made clear in Nevares
v. San Marcos Consolidated Independent School District that a transfer to an alternative school with
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stricter discipline does not deny the student’s access to a free public education and therefore does
not violate a federal protected property or liberty interest. 111 F.3d 25, 26 (5th Cir. 1997).
With respect to the seven-day suspension, since the suspension was for less than ten days,
Taylor Bell was only entitled to ““be given oral or written notice of the charges against him and, if
he denies them, an explanation fo the evidence the authorities have and opportunity to present his
side of the story.” Harris v. Pontotoc County School District, 635 F.3d 685 (5th Cir. 2011) (quoting
Goss v. Lopez, 419 U.S. 565, 574 (1975)). There is no particular delay or formality required, but
there must have been at least “an informal give-and-take between student and disciplinarian.” Goss,
419 U.S. at 582. In this case, both Taylor Bell and his mother were given oral and written notice of
the charges against him. Taylor Bell was given two hearings during which he had the opportunity
to give his side of the story while represented by counsel.
III. CONCLUSION
For the reasons discussed above, the court concludes that the plaintiffs’ motion for summary
judgment should be denied. The court concludes further that the defendants’ motion for summary
judgment should be granted and that all of the plaintiffs’ claims should be dismissed with prejudice.
A Final Judgment shall issue forthwith,
THIS DAY of March 14, 2012.
/s/ Neal Biggers
NEAL BIGGERS
U.S. DISTRICT JUDGE
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