United States: The Rap Song, the Coaches and Free Speech – Susan Brenner

2 01 2015

United_States_Courthouse_(Natchez,_Mississippi)In December 2010, Taylor Bell was an eighteen-year-old senior at Itawamba Agricultural High School who had “no record” of any disciplinary problems aside from a single in-school suspension for tardiness. Bell is an aspiring rap musician, has written lyrics and music since he was a young boy, and began recording and seriously pursuing music in his early teens. 

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 [in the suit he later filed] contains affidavits from female students stating they informed Bell of this misconduct by Wildmon and Rainey.

According to these affidavits, Wildmon told one of Bell’s classmates, R.M., that she had a `big butt’ and he would date her if she were older. She also [said] Wildmon had looked down her shirt, inappropriately touched her, and told her she was `one of the cutest black female students’ at Itawamba. Another student, D.S., told Bell she witnessed these incidents between Wildmon and R.M .; in addition, D.S. [told] Bell Rainey had `rubbed [her] ears at school without her permission, and [she] had to tell him to stop.’ Yet another, S.S., told Bell Rainey commented to her that he thought she had `”messed” with some nasty people’ and suggested that he otherwise would have, in S.S.’s words, `turn[ed][her] back “straight” from being “gay.”’ A fourth student, K.G., told Bell Rainey approached her in the gym and said, `damn baby, you are sexy.’ Bell v. Itawamba School Board, 2014 WL 7014371  [pdf] (U.S. Court of Appeals for the 5th Circuit, 2014).

Bell later said “he did not report” the complaints to school authorities because “in his, view, the school officials generally ignored complaints by students about the conduct of teachers and coaches.”  Bell v. Itawamba School Board, supra.  Instead, over the Christmas holidays, while school was not in session, he composed and recorded a

rap song about the female students’ complaints at a professional recording studio unaffiliated with the school. . . . According to Bell, he believed 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 accused Wildmon of telling students they are `sexy’ and looking down female students’ shirts, and it [said he] `better watch [his] back,’ and `white 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 repeated lines to the effect of `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.’ The song referred to Rainey as a second `Bobby 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 `rubbing black girls’ ears in the gym.’  Bell v. Itawamba School Board, supra.

This link will take you to Bell’s song.

The opinion goes on to explain that

“[i]n the first few days of January 2011, 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 `friends.’ The Facebook website was blocked on school computers. Although any of Bell’s Facebook `friends’ potentially could use a cellphone to access the song on Facebook, school regulations prohibited students from bringing cellphones to school. Bell v. Itawamba School Board, supra.

Bell later testified that when he returned to school after the Christmas break, he “never played the song at school” and never “encouraged anyone at school — students or staff — to listen to” it.   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, Principal Wiygul and the school district’s attorney, Michele Floyd, asked

Bell about the song and its accusations. . . . [S]he asked whether Bell meant the teachers were having sexual relations with students, to which Bell responded that the lyrics meant the teachers were `messing with kids—not having sexual relations with them. . . . According to Bell, the school officials never suggested Wildmon or Rainey felt threatened; instead, it seemed to Bell, the problem was that Wildmon felt . . . `his name had been slandered.’ Bell [later said] the officials never said school had been disrupted as a result of the song. After [the meeting,] Bell was sent home for the rest of that day, which was a Friday. . . . [He] was not given a clear answer as to . . . why he was being sent home. . . .Bell v. Itawamba School Board, supra.

A snowstorm closed the school until the following Friday and during that week Bell created “a more polished version of the song”, which he uploaded to YouTube from his home computer.Bell v. Itawamba School Board, supra.  He went back to class on that Friday and later said he did not notice any “disruption” due to the song “nor did he tell anyone at school . . . to listen to” it. Bell v. Itawamba School Board, supra. Around

mid-day . . . 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. Bell v. Itawamba School Board, supra.

The hearing was held on January 26, 2011, and Michele Floyd said the purpose was

to determine whether Bell had `threaten[ed], intimidat[ed], and/or harass[ed] one or more school teachers.’ 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 [it] in response to the coaches’ inappropriate behavior toward female students. He [said] he did not believe telling the school authorities about the coaches’ misconduct would have accomplished anything because school officials had failed to respond to other students’ complaints in the past. During the hearing, Bell presented letters from female students corroborating the allegations of the coaches’ misconduct. The Committee [said] 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. Bell v. Itawamba School Board, supra.

When members of the Disciplinary Committee asked 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 and to increase awareness of the situation. Bell explained the lyrics were not intended to intimidate, threaten, or harass Wildmon or Rainey. However, he indicated 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 children — not that Bell would react violently. Bell v. Itawamba School Board, supra

The next day Floyd sent Bell’s mother a letter that said the Disciplinary Committee had decided “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.”  Bell v. Itawamba School Board, supra. It also said the Committee found that “whether Bell’s song constituted a `threat to school district officials was vague’”, but found it “harassed and intimidated the coaches in violation of Itawamba School Board policy and unspecified state law.” Bell v. Itawamba School Board, supra.

About two weeks later, Bell and his mother filed a 42 U.S.Code § 1983 civil rights suit in theU.S. District Court for the Northern District of Mississippi against the Itawamba County School Board, Superintendent McNeece and Principal Wiygul, claiming that they violated Taylor Bell’s 1st Amendment right to free speech by imposing school discipline

on Bell for his off-campus composition, recording and Internet-posting of his rap song. 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. Bell v. Itawamba School Board, supra.

The Judge held a hearing on Bell’s request for a preliminary injunction at which “a number” of witnesses testified, two of whom were Rainey and Wildmon. Rainey said he “had not heard the song and felt it was `just a rap,’ not to be taken seriously, and felt that if he `let it go, it [would] probably just die down.’” He also said it “`affected’” the way he “`talk[ed] to kids,” and led him to “avoid interactions with students that might be interpreted as being inappropriate.”  Wildmon said “`the song caused him to be more cautious around students and to avoid the appearance that he was behaving inappropriately toward them’”. He also said he “felt `scared’ after hearing the song since `you never know in today’s society . . . what somebody means, how they mean it.

At the end of the hearing, the District Court Judge the district court denied the motion for the preliminary injunction as “moot because Bell had only one day of alternative school remaining.” Bell v. Itawamba School Board, (12 March 2012 [pdf])  Then, since both sides had filed motions for summary judgment on their respective behalfs, the judge 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. 5031 (1969) [“Tinker v. Des Moines”], the song’s lyrics `caused a material and/or substantial disruption at school and it was reasonably foreseeable to school officials the song would cause such a disruption.’ Specifically, the court [said] Wildmon’s and Rainey’s testimony that the song `adversely affected’ their teaching styles constituted an `actual disruption’ to school activities. The court also concluded it was `reasonably foreseeable’ that the song, which `levies 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.’ Bell v. Itawamba School Board, supra.

Bell and his mother, Dora Bell, then appealed the judge’s decision to the U.S. Court of Appeals for the 5th Circuit. The Court of Appeals began its analysis of the appeal by noting that summary 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”. Bell v. Itawamba School Board, supra (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (quoting Rule 56(c) of the Federal Rules of Civil Procedure)).

The court then noted that Tinker, Court held that school officials can prohibit student speech and expression upon showing

“`facts which might reasonably have led school authorities to forecast [that the proscribed speech would cause] substantial disruption of or material interference with school activities.’  Tinker v. Des Moines, supra.  School officials `must 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.’ Tinker v. Des Moines, supra.   It is a school’s burden to prove that its suppression of student speech conforms with this governing standard. Bell v. Itawamba School Board, supra.

The Court of Appeals also noted that it had held, in other, similar cases, that while

`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.’ AM. ex rel. McAllum v. Cash, 585 F.3d 214 (U.S. Court of Appeals for the 5th Circuit 2009). Further, school officials `must 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.”’ AM. ex rel. McAllum v. Cash supra (quoting Butts v. Dallas Indep. Sch. Dist., 436 F.2d 728 (U.S. Court of Appeals for the 5th Circuit 1971)). . . .Bell v. Itawamba School Board, supra.

It also pointed out that since the Tinker case,

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, BethelSch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), if it is school-sponsored and the restriction is `reasonably related to legitimate pedagogical concerns,’ HazelwoodSch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), or if it is reasonably viewed as promoting the use of illegal drugs, Morse v. Frederick, 551U.S. 393 (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. . . Bell v. Itawamba School Board, supra.

The court went on to explain that “contrary” to the District Court Judge’s decision,

the Supreme Court in Tinker did not hold that the `substantial-disruption’ test applies to off-campus speech. Instead, when the Court stated that, `[a] student’s rights . . . do not embrace merely the classroom hours’ and that, `conduct by the student, in class or out of it, which . . . materially disrupts . . . is, of course, not immunized by the constitutional guarantee of freedom of speech”.  Tinker v. Des Moines, supra. 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, `When 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 . . ., 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.’ Tinker v. Des Moines, supra. 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. Rather, the Court meant that the governing analysis would apply `in class or out of’ the classroom while the student is on campus during authorized hours. The Court’s subsequent student speech cases make this distinction clear.  Hazelwood School District v. Kuhlmeier, supra.   Bell v. Itawamba School Board, supra.

It also explained that the School Board could not rely on Tinker as a defense because

even assuming arguendo that the Tinker `substantial-disruption’ test could be applied to a student’s off-campus speech, the summary-judgment evidence establishes that no substantial disruption ever occurred, nor does it `demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.’ Tinker v. Des Moines, supra. 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. . . . [T]he 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. . . .

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 of a purported disruption that 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. 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. Bell v. Itawamba School Board, supra

The Court of Appeals also noted that (i) the evidence “conclusively shows Bell’s song was composed, recorded, and posted to the Internet entirely off campus” and (ii) school computers blocked students from accessing it on campus and (iii) “ 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”.

For these and other reasons, it ordered that the District Court Judge’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.

 This post originally appeared on the Cyb3rCrim3 blog and is reproduced with permission and thanks


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