Students and speech seem to be on everyone’s mind these days. But way back in the summer, when today’s student activists were doing internships or otherwise not trying to create safe spaces on their then-quiet campuses, the en banc Fifth Circuit invoked student safety to actually erode student speech rights. Now the lawyers for Taylor Bell, whom the Fifth Circuit allowed to be punished for off-campus speech he engaged in back when he was a high school student, are asking the Supreme Court to take his case.
A recap: In December 2010, then-high school senior Taylor Bell says he heard some girls from his school talking about how two coaches had been doing and saying inappropriate things to them. In response, and not on school grounds, Bell wrote and recorded a song about what he’d heard and posted it to Facebook. The song included lyrics like these: “Looking down girls’ shirts / Drool running down your mouth / You fucking with the wrong one / Going to get a pistol down your mouth.” When school administrators inevitably discovered the song, Bell was first suspended and then shipped off to another school.
Bell sued the school district, claiming a violation of his First Amendment right to free speech. At the trial level, he lost on summary judgment, with the judge ruling that Bell’s speech, though conducted off-campus, could nevertheless have materially or substantially disrupted the school environment (a test derived from the landmark case Tinker v. Des Moines Independent Community School District). Then Bell scored a reversal before a panel of the Fifth Circuit, where two judges applied Tinker to protect off-campus speech from formal censure while a dissenter, Judge Barksdale, suggested that schools are war zones and called the majority’s ruling “absurd.”
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But then the Fifth Circuit agreed to hear the case en banc, and the full court affirmed summary judgment in the school district’s favor. Judge Barksdale’s view that schools are war zones and, therefore, that administrators should be allowed to punish “threatening, intimidating, and harassing” speech like Bell’s, off-campus or not, became the reasoning that underpinned the majority opinion.
When I wrote about this case back in August, I concluded with these thoughts:
Let’s hope the Supreme Court sees fit soon to end the decades of caselaw eroding Tinker and return to its original guide star: the principle that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Who knows — maybe this will even be the case the Court uses to do so.
As it turns out, that’s exactly what Bell’s lawyers hope will happen. Last week, they filed a petition for certiorari with the Supreme Court arguing that “courts of appeals and state high courts are hopelessly splintered over whether, and if so when, Tinker applies to students’ speech outside of the school environment.” Accordingly, the petition presents the question “whether and to what extent public schools, consistent with the First Amendment, may discipline students for their off-campus speech.”
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The petition presents a compelling argument in support of the Court’s taking up Bell’s case: Not only is the Fifth Circuit wrong that Tinker permits schools to regulate off-campus speech, it says, but also courts’ treatment of this question is all over the map: there’s “confusion and disarray perplexing lower courts and schools nationwide,” courts are “hopelessly divided,” and this “division… has led to wildly inconsistent results.” Which, of course, the petition goes on to spell out.
And the petition explains why Bell’s case presents such an important issue: cases keep coming up where schools discipline students for off-campus speech, especially given “the rapid rise of teen Internet speech” and social media use. As off-campus student speech is increasingly permanent and widely broadcast, more and more conflicts are bound to arise.
So I’ll end where the petition begins, exhorting the Court in its introduction: “Only this Court can provide the guidance that students, parents, teachers, school administrators, and lower courts desperately need.” And I’d add one more thing: it’s deeply important that the Court’s guidance affirm the students’ right to speak outside of school without fear of official sanctions.
Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].