774 F.3d 280 (5th Cir. 2014), 12-60264, Bell v. Itawamba County Sch. Board

Docket Nº:12-60264
Citation:774 F.3d 280
Opinion Judge:JAMES L. DENNIS, Circuit Judge:
Party Name:TAYLOR BELL; DORA BELL, individually and as mother of Taylor Bell, Plaintiffs - Appellants v. ITAWAMBA COUNTY SCHOOL BOARD; TERESA MCNEECE, Superintendent of Education for Itawamba County, individually and in her official capacity; TRAE WIYGUL, Principal of Itawamba Agricultural High School, individually and in his official capacity, Defendants - A
Attorney:For TAYLOR BELL, DORA BELL, individually and as mother of Taylor Bell, Plaintiffs - Appellants: Wilbur O. Colom, Scott Winston Colom, Attorney, Colom Law Firm, L.L.C., Columbus, MS. For ITAWAMBA COUNTY SCHOOL BOARD, TERESA MCNEECE, Superintendent of Education for Itawamba County, Individually and...
Judge Panel:Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge, concurring in part and dissenting in part. CONCUR BY: RHESA HAWKINS BARKSDALE (In part) RHESA HAWKINS BARKSDALE, Circuit Judge, concurring in part and dissenting in part.
Case Date:December 12, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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774 F.3d 280 (5th Cir. 2014)

TAYLOR BELL; DORA BELL, individually and as mother of Taylor Bell, Plaintiffs - Appellants

v.

ITAWAMBA COUNTY SCHOOL BOARD; TERESA MCNEECE, Superintendent of Education for Itawamba County, individually and in her official capacity; TRAE WIYGUL, Principal of Itawamba Agricultural High School, individually and in his official capacity, Defendants - Appellees

No. 12-60264

United States Court of Appeals, Fifth Circuit

December 12, 2014

Page 281

Appeal from the United States District Court for the Northern District of Mississippi.

For TAYLOR BELL, DORA BELL, individually and as mother of Taylor Bell, Plaintiffs - Appellants: Wilbur O. Colom, Scott Winston Colom, Attorney, Colom Law Firm, L.L.C., Columbus, MS.

For ITAWAMBA COUNTY SCHOOL BOARD, TERESA MCNEECE, Superintendent of Education for Itawamba County, Individually and in her official capacity, TRAE WIYGUL, principal of Itawamba Agricultural High School, Individually and in his official capacity, Defendants - Appellees: Benjamin Elmo Griffith, Michael Stephen Carr, Esq., Attorney, Griffith & Griffith, Cleveland, MS; Michele H. Floyd, Fulton, MS.

For STUDENT PRESS LAW CENTER, Amicus Curiae: Scott L. Sternberg, Baldwin Haspel Burke & Mayer, L.L.C., New Orleans, LA.

Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge, concurring in part and dissenting in part.

OPINION

Page 282

JAMES L. DENNIS, Circuit Judge:

This appeal raises a First Amendment challenge to a public high school student's suspension and transfer to alternative school for his off-campus posting on the Internet of a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at his school. The aspiring student rapper, Taylor Bell, composed the song off campus, recorded it at a professional studio unaffiliated with the school, and posted it on his Facebook page and on YouTube using his personal computer while at home. Bell had never before been charged with a serious school disciplinary violation. After the disciplinary action was imposed and affirmed by the Itawamba County School Board, Bell and his mother, Dora Bell, sued the School Board, its Superintendent, and the school's Principal, for violation of Bell's freedom of speech under the First Amendment and Dora Bell's substantive-due-process right to parental authority under the Fourteenth Amendment. Upon cross-motions for summary judgment, the district court rendered summary judgment for the School Board and its officials. The Bells appealed.

We reverse the district court's judgment in favor of the School Board against Taylor Bell and render summary judgment against the School Board in favor of Taylor Bell, awarding him nominal damages as prayed for, and other relief, for the Board's violation of his First Amendment right to freedom of speech. The summary-judgment evidence and materials establish that Bell composed and recorded his rap song completely off campus; that he used his home computer to post it on the Internet during non-school hours; and that the School Board did not demonstrate that Bell's song caused a substantial disruption of school work or discipline, or that school officials reasonably could have forecasted such a disruption. Otherwise, the district court's grant of summary judgment in favor of Defendants-Appellees against Dora Bell is affirmed, as well as the district court's summary judgment for the individual school officials.1

I.

A.

In December 2010, Taylor Bell was an eighteen-year-old senior at Itawamba Agricultural High School with no record of any disciplinary problem aside from a single in-school suspension for tardiness. Bell is an aspiring rap2 musician, has written lyrics and music since he was a young

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boy, and began recording and seriously pursuing music in his early teens.3 In this respect, Bell considers himself an " artist." Bell testified that 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 also contains affidavits from female students stating that they informed Bell of this misconduct by Wildmon and Rainey. According to these affidavits, Wildmon told one of Bell's classmates, R.M.,4 that she had a " big butt" and that he would date her if she were older. She also stated that Wildmon had looked down her shirt, inappropriately touched her, and told her that she was " one of the cutest black female students" at Itawamba. Another student, D.S., told Bell that she witnessed these incidents between Wildmon and R.M.; in addition, D.S. informed Bell that Rainey had " rubbed [her] ears at school without her permission, and [that she] had to tell him to stop." Yet another student, S.S., told Bell that 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 that Rainey approached her in the gym and said, " damn baby, you are sexy."

Bell admitted that he did not report these complaints to school authorities, but he explained that, in his view, the school officials generally ignored complaints by students about the conduct of teachers and coaches. During the Christmas holidays, while school was not in session, Bell composed and recorded a rap song about the female students' complaints at a professional recording studio unaffiliated with the school. Bell did not use any school resources in creating or recording the song. According to Bell, he believed that 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 song5 accused Wildmon of telling students that they are " sexy" and looking down female students' shirts, and it stated that he " better watch [his] back," and that " 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." The song's lyrics in full were as follows:6

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Let me tell you a little story about these Itawamba coaches

Dirty ass niggas like some fucking coacha roaches Started fucking with the whites and now they fucking with the blacks That pussy ass nigga Wildmon got me turned up the fucking max.7 Fucking with the students and he just had a baby Ever since I met that cracker I knew that he was crazy Always talking shit cause he know I'm from the city8 The reason he fucking around cause his wife ain't got no titties This nigga telling students that they sexy, betta watch your back I'm a serve this nigga like I serve the junkies with some crack Quit the damn basketball team / The coach a pervert Can't stand the truth so to you these lyrics going to hurt9 What the hell was they thinking when they hired Mr. Rainey Dreadlock Bobby Hill the second / He the same see Talking about you could have went pro to the NFL Now you just another pervert coach, fat as hell10 Talking about you gangsta / Drive your mama's PT Cruiser11 Run up on T-Bizzle12 / I'm going to hit you with my rueger13 Think you got some game / Cuz you fucking with some juveniles You know this shit the truth so don't you try to hide it now Rubbing on the black girls' ears in the gym White hoes, change your voice when you talk to them I'm a dope runner, spot a junkie a mile away Came to football practice high, remember that day I do, to me you a fool nigga 30 years old fucking with students at the school Hahahah You's a lame and it's a damn shame Instead you was lame, eat shit, the whole school got a ring mutherfucker.14 Heard you textin'15 number 2516 / You want to get it on White dude, guess you got a thing for them yellow bones Looking down girls' shirts / Drool running down your mouth Page 285

You fucking with the wrong one / Going to get a pistol down your mouth/Pow17

OMG18 took some girls in the locker room in PE Cut off the lights you motherfucking freak Fucking with the youngins Because your pimpin game weak19 How he get the head coach I don't really fucking know But I still got a lot of love for my nigga Joe And my nigga Makaveli and my nigga Cody Wildemon talk shit bitch don't even know me 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 Middle fingers up / he get no mercy nigga.

In the first few days of January 2011,20 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." 21 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.

Upon returning to school after the Christmas holidays, Bell testified that he never encouraged anyone at school--students or staff--to listen to the song. He further testified that he never...

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