Tag Archives: student free speech

Texas judge issues injunction allowing cheerleaders to display religious banners

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Kountze High School banner

A Texas judge issued an injunction allowing cheerleaders to display religious banners. This temporary injunction will allow Kountze High School cheerleaders to continue to display banners stating Christian messages at their football games. The temporary injunction replaces a temporary restraining order that had put in place to allow the cheerleaders to continue the use of their banners.

The issuance of this order by no means puts an end to this dispute. Judge Steven Thomas set a trial date June 24, 2013, to make a final decision on the merits of the lawsuit. Cheerleaders have had run through banners reading  “I can do all these through Christ who strengthens me,” and “If God is for us, who can be against us?”

The main issue in this case appears to be the nature of the cheerleading group itself. Rather than being a state sponsored activity, the cheer group has little to do with the school other than the students attend it. They pay for their own uniforms, utilize their parents as coaches, and lead their own practices during non-school hours. While there are faculty advisers, the

two faculty “sponsors,” Tonya Moffett and Beth Richardson, who are also parents of two cheerleaders, supervise the team to ensure a safe, respectful, and orderly environment. The faculty sponsors are present at the practices in only a nonparticipatory, custodial capacity.
Additionally, the decision seems to place weight on the fact that the cheerleaders rotate the responsibility of rotating the responsibility of what appears on the message. Thus, their attorneys are able to argue the messages are personal rather than group sponsored speech.
Furthermore, no district monies are expended for the purchase of supplies. The banners are not required by the school.
Finally, some years ago Texas passed a law, the Religious Views Anti-Discrimination Act of 2007, which was passed with the intent of helping to protect student religious speech by requiring school districts to adopt disclaimers separating student speech at school-sponsored events from school sponsored messages.

Interestingly, at the time of the mid-October decision, Kountze High’s football had a 5-1 record, since the decision came down, the Lions have gone 0-4. Given the religious stature of Texas high school football itself, one wonders whether Kountze High cheer leaders might not voluntarily discontinue their lawsuit.

 

Kountze High School cheerleader run through banner (Click for video)

8th Circuit holds student racist/sexist blog speech unlikely to be protected

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Overturning a preliminary injunction issued by a lower court, the U.S. Court of Appeals for the Eighth Circuit handed down a ruling this week that a blog created by Missouri high school students containing both sexist and racist speech was unlikely to be First Amendment protected speech.

Lee Summit North High School

Lee Summit North High School
(Credit: edcampkc.wikispaces.com)

The three judge panel unanimously overturned a district’s court’s preliminary injunction which had allowed the Lee’s Summit North High School student creators of a blog to return to school pending a court decision on whether the speech on the blog was protected.

In the case, two twin brothers, Sean and Steven Wilson, created a website called NorthPress, part of which contained a blog. According to the Wilson brothers, the purpose of the site was to “discuss, satirize, and ‘vent’ about events at Lee’s Summit North.” Because they used a Dutch domain site, U.S. users were prevented from finding the website using a search engine. However, any person could access the website provided they knew the website address: NorthPress was not password protected.

During December, 2011, the twins added posts to the NorthPress blog which included a variety of sexist and racist content. The sexist comments went to far as to mention a fellow female student by name. The racist posts discussed various altercations that had taken place at the school and mocked black students.In addition, a third unnamed student added another racist post.

The exact degree to which the speech was off-campus was a matter of dispute in the case. It was shown during the case that one of the Wilson twins used a school computer for the purpose of uploading computer files necessary for the creation of their website. District records also show that the website was accessed two other days, but District was unable to prove who accessed the site or whether they merely looked at the site or contributed files to it.

In additional testimony, the Wilsons stated that they only told five or six other students about the site, but by December 16, 2011, the student body was definitely aware of the site’s existence, and school administrators became aware of it that same day. Following a brief investigation, the school suspended the two boys for ten days and referred them for expulsion. There ensued a hearing, then an appeal by the Wilsons, then a second hearing at the conclusion of which the Wilsons were suspended from Lee Summit North but were allowed to attend Summit Ridge Academy. The Wilsons filed suit seeking a preliminary injunction in order to lift the suspensions.

The District Court quickly conducted a preliminary injunction hearing. In the trial, the Wilsons argued that their website was satirical rather serious and that they were not racist. Further, they argued that their website had not caused disruption at the school. The boys testified that December 16, was pretty much like every other day at Lee Summit North. Their additional testimony related to the fact that attending Summit Ridge Academy was deny them the opportunity to possibly attain a band scholarship and also to take honors level classes.

During this hearing the District argued that student body wide discovery of the site had indeed caused substantial disruption. District argued that returning the boys to Lee Summit North would cause further disruption at the site and could endanger the boys’ safety.

A federal district judge ruled in the boys’ favor, holding that while the speech may not be protected, the boys were suffering irreparable harm by not being able to attend their regular school. Based on the March ruling, the boys were allowed to return to Lee Summit North.

The school district immediately appealed the lower court’s ruling. On October 17, 2012, the 8th Circuit issued its opinion in  S.J.W. v. Lee’s Summit R-7 School District, finding for the district and overturning the original preliminary injunction.

The court’s decision is in line with a number of Federal Courts of Appeals holdings addressing student off-campus speech which creates a campus disruption. Applying the Tinker standard, the court reasoned that here, while it was contested whether or not the speech occurred on campus or not, the speech had as its target the students of Lee Summit North. This, coupled with the fact that the speech had been found to have been responsible for causing a substantial campus disruption, meant the students’ speech was unlikely to be protected under the First Amendment, and thus the students’ discipline should remain in place pending an actual hearing to decide the issue.

In addressing the issue of irreparable harm to the twins, the 8th Circuit held that the school the boys were to attend was accredited and would allow the twins to graduate on time. Further, on the issue of college scholarships, the Court held that potential scholarships were too speculative in nature to constitute harm to the boys.

The case brought up another novel legal issue which the Court was able to dispatch without ruling on its merits. Attorneys for the twins argued that they could succeed on the merits of their case under the Communications Decency Act (CDA) which states in relevant part, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The gist of their argument was that as publishers of NorthPress,the boys were merely providers of a computer services, NorthPress, and they cannot be held responsible for the content of the third student’s racist post, which they contended during the case that if there was a disruption, it was due to that post, not theirs.

The three judge panel made no determination as to whether the CDA applied here, since the point was moot. The lower court had found that the twin’s post had been disruptive to the school, not just the single post of the third student. This being true, the CDA would not apply.

In the end, the decision of what is to happen to the boys pending a final decision on their case was left to the lower court.

Profanity laced threats by school rapper not protected by 1st Amendment

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A Mississippi federal district court summarily dismissed a case against a school district and its officials for disciplining a student who had posted an invective and threat-filled rap song on his Facebook page and on YouTube. Taylor Bell, a senior at Itawamba Agricultural High School, composed, sang, and recorded a rap song that he then posted on to Facebook so that it could be viewed by his over 1,300 Facebook friends and then went on to publish the song on YouTube. The vulgar song accuses two of the school’s coaches of having inappropriate contact with underage female students. According to court documents, “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.’”

Taylor Bell, former Itawamba High School student

In Bell v. Itawamba County School Board, Judge Neal Biggers upheld the seven day suspension and administrative transfer levied by the school upon discovering the song. Applying the Tinker standard, the court found 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.

This is another in string of federal cases where student off-campus speech has been held actionable by the courts. Under Tinker, “conduct by a student, in class or out of it” which “materially disrupt classwork or involves substantial disorder or invasion of rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” The court noted that Tinker‘s material or substantial disruption standard has been expanded to allow speech to be regulated where such issues are only foreseeable, not having yet occurred.

In reaching its holding the court applied the following test:

(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.

Applying this test, the court found that the song had created actual disruption at the school. Coach Wildmon, one of the coaches about whom the song was penned, first heard about it while teaching his class. His wife had learned and heard of the song and texted him from her cell phone. Upon receiving the text, the coach turned to three seniors sitting in his class and asked if they had heard the song. Replying affirmatively, one of the students played the song for him using his cell phone. The coach testified that he felt threatened by the lyrics threatening to kill him in the song and that his “teaching style had been adversely affected” due to his belief that now students suspected him of inappropriate behavior.

The court also found that disruption was foreseeable where 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.

Gregory R. Branch is an educational attorney in Orange County, California. If you feel that your child has been unconstitutionally disciplined for exercising their right to free speech, please contact Mr. Branch at gregorybranch@edrightsadvocate.com or at (714) 856-1166.