Tinker Extended: Students’ Protection or School Tyranny?

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

Taylor Bell, a high school senior, created a rap song regarding allegations that coaches sexually harassed Bell’s classmates.[1] Hoping to raise awareness to the issue, Bell posted his rap on Facebook, where it made its way to the school community.[2] The rap identified the coaches, and contained the lyric, “You fucking with the wrong one, going to get a pistol down your mouth.”[3] Upon hearing about the rap, the school district suspended Bell for threatening a teacher—a “severe disruption” under school policy.[4] After a disciplinary hearing, the school suspended Bell for seven days and placed him in an alternative school for the remainder of the grading period.[5]

The issue is whether a school violates constitutional rights to freedom of speech under the First Amendment by disciplining students for their off-campus speech. In Bell v. Itawamba County School Board, the Fifth Circuit Court of Appeals upheld the school’s discipline of Bell.[6] Joining four of the five other circuit courts to address this legal issue thus far, the Fifth Circuit held that the ‘substantial disruption’ standard announced in Tinker v. Des Moines[7]—that a school may discipline a student for speech that is reasonably forecasted to cause, or actually causes, a material and substantial disruption—also extends to regulating students’ off-campus speech in certain instances.[8] The Fifth Circuit’s decision in Bell (and the recent trend amongst the circuit courts overall) to extend the Tinker doctrine to students’ off-campus speech is improper because it effectively dilutes the First Amendment rights of students for their entire school career.

Supreme Court Precedent on Students’ Freedom of Speech

The case law surrounding student speech has greatly evolved over the forty-six years since the Supreme Court infamously stated in Tinker v. Des Moines that students do not “shed their constitutional rights to freedom of speech . . . at the schoolhouse gate.”[9] In Tinker, the Court held that a school could not restrict its students’ speech absent the school showing that the speech actually caused, or was reasonably forecasted to cause, a material and substantial disruption.[10] The Supreme Court has spoken on this issue three times since Tinker.[11] In Morse v. Frederick,[12] Bethel School District v. Fraser,[13] and Hazelwood School District v. Kuhlmeier,[14] the Supreme Court respectively held that schools could regulate student speech that advocated drug use, lewd speech, and student speech which bears the “imprimatur” of the school.[15] Tinker and its progeny, however, were generally understood to only permit schools to regulate student speech at the school and any school sponsored event.[16]

The Bell Majority: Tinker Test Applies to Students’ Off-Campus Speech

In extending the Tinker ‘substantial disruption’ doctrine, the Fifth Circuit Court of Appeals held that a school could regulate off-campus student speech.[17] Although a panel of three judges on the Fifth Circuit Court previously determined that the school had infringed on Bell’s free speech rights, an en banc panel later decided that schools may regulate student speech if it is intentionally directed at the school and school officials reasonably perceive the speech as threatening, intimidating, or harassing a teacher.[18] Ultimately, the court relied on its own precedent in Porter v. Ascension Parish, where it held that a school could not regulate a student’s speech—a violent drawing in that case—because the speaker did not intend for his speech to reach the school.[19] The court distinguished Porter from Bell’s case because there was no dispute that Bell intended his speech to reach the school community.[20] The court concluded that the school could have reasonably forecasted a material and substantial disruption because Bell’s speech could be reasonably perceived as threatening the lives of the coaches.[21]

Bell’s Dissent: Tinker Test is Not Applicable to Off-Campus Speech

In Bell’s dissent, Judge Dennis argued that the majority erroneously disregarded the “significant” first amendment protections that students hold; erroneously employed a broad “lay person” standard; and wrongly ignored that the Tinker standard is rooted in the special characteristics of the school environment.[22] The judge relied on past Supreme Court precedent that supports the notion that the government does not have an unabridged power to “restrict ideas to which children are exposed.”[23] In addition, the majority’s failure to define “harassing,” “threatening,” or “intimidating” and its reliance on a “lay person” standard instead of the “true threat” standard creates a broad source of power for schools to ceaselessly stifle student speech and fails to give students adequate notice of what speech would be punished.[24] Finally, the dissent refers back to language in Tinker, which supports the argument that Tinker’s holding refers to student speech on school campus.[25]

Why Courts Should Not Apply the Tinker Doctrine to Students’ Off-Campus Speech

The Tinker Court sought to establish a delicate balance between giving schools the authority to regulate student speech in schools to keep students safe and making sure students do not lose their fundamental rights when stepping into schools. School officials have no authority outside of school grounds. Once off campus, students cease being students and become citizens, entitled to regular First Amendment protections. So even though student speech off campus could easily disrupt school activities, schools do not have authority over students’ speech once they leave campus.

Until recently, the Tinker doctrine has always been understood as only allowing regulation of students’ speech on campus and at school sponsored events [26] In Fraser, the Supreme Court explicitly held that, “the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings.”[27] Justice Brennan also mentioned that student speech restrictions do not apply outside the school environment.[28] In Tinker, the Supreme Court acknowledged the authority of school officials in schools, but also stipulated that students have fundamental rights, which the State cannot deny, even when they attend school.[29] A nasty insult, dangerous insinuation, or offensive statement made off campus could affect the school environment or cause a disruption; but schools have no authority over regular citizens, which students become when they leave school grounds. The holding in Bell suggests that if a speaker intends for his speech to reach the school community, his statements are subject to regulation by school officials if they could reasonably forecast a risk of material and substantial disruption. However, if a non-student had written that rap, intending that it reach the school community, the school would have no authority over that non-student. Students should not receive less protection than regular citizens just because they are students. Extending Tinker basically allows for students to receive fewer First Amendment protections than an ordinary citizen for the entire 16 years that they are in school.  If students do not shed their constitutional rights at the schoolhouse gate, they should receive the same protections as regular citizens when they are off school grounds.

Finally, the majority also found that since the technological world does not end at the schoolhouse gate, schools should have greater authority over students’ off campus speech.[30] However, this statement fails to give adequate credit to schools’ uncanny ability to efficiently regulate just about anything they want to. Through cell phone bans, specific website bans, and limited wireless access, schools could, if they wanted to, regulate the majority of students’ technological communications on campus. Although the school could not restrict every student from speaking about a new salacious topic, that power was not available before the tech age either. Just because the internet makes the jobs of school officials more complicated, doesn’t mean that schools should have broad authority over student speech on and off campus.

The Fifth Circuit Mistakenly Declined to Evaluate Bell’s Speech as a “True Threat”

The danger of extending the Tinker doctrine is explicitly shown in the Bell opinion. In relying on the “lay person” standard, the court created a flimsy replacement for the traditional “true threat” restriction on the First Amendment. Traditionally, citizens can say whatever they like, as long as their speech does not fall within an exception to the First Amendment, like a “true threat.” In incorrectly applying a “layperson” standard to evaluate whether Bell’s rap was considered a threat, the court trampled on Bell’s constitutional right to free speech. When off campus, Bell is a regular citizen entitled to regular First Amendment protections like any other United States citizen. If he made a true threat, the school could notify the police—the traditional way people deal with true threats.

Unfortunately, the court did not even decide if Bell’s statements were true threats. Although the court claimed that it was not determining whether Bell’s speech was a “true threat,” in applying the layperson standard, the court was erroneously applying an objective standard test. A recent Supreme Court case, Elonis v. United States, held that “it was error for the jury to be instructed that the government need only prove that a reasonable person would regard petitioner’s communications as threats.”[31] Similar to our case, Elonis involved a man charged with transmitting threats on his Facebook page through a rap that used violent language.  Unlike Elonis, Bell’s case was not criminal. However, earlier this year the Oregon District Court, in a civil case, Burge v. Colton School District, held that if any one standard applied in the civil context, it was a subjective standard—like the “true threat” standard.[32]

Conclusion

The circuits’ trend in extending the Tinker standard to off campus speech impermissibly opens the floodgates to unfettered territory. This holding permits schools to regulate a student’s off campus speech if it threatens, harasses, or intimidates members of the school community; if the speaker intends for his speech to reach the community; and if the school could reasonably forecast a material and substantial risk of disruption. The Tinker doctrine was not meant to be extended this far. It infringes upon the First Amendment rights of students at all times. In the words of Judge Dennis, “… the majority opinion allows schools to police their students’ internet expression anytime and anywhere—an unprecedented and unnecessary intrusion on students’ rights.”[33] Finally the court, by refusing to evaluate Bell’s speech as a true threat, erroneously created a vague and broad lay person standard that gives no notice to students as to what speech schools could reasonably forecast as creating a material and substantial disruption.

With this standard, students cannot possibly know what kind of speech will get them in trouble. Who gets to determine what a “threat” is? According to this court, any reasonable person gets to decide what a threat is. What kind of “disruption” is substantial and material?  If a student calls another student a name online and it causes the student to miss school, is that a material and substantial disruption? The Tinker doctrine was established precisely to avoid this result. Students’ off campus speech should not be subject to punishment just because they are both students and citizens. If schools have fears about a student threatening violence, they should call the police. If a student is being bullied or threatened online, that student can get a protection order. The primary responsibility of schools is to educate. While school officials should retain authority over disruptive student speech on campus, regulation of student speech off campus runs contrary to first amendment protections. Schools should not and do not have the authority to regulate all aspects of a student’s life. Students do not deserve less first amendment protection in all aspects of their life just because they are students.

[1] Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015).

[2] Id. at 385.

[3] Id. at 384.

[4] Id. at 385.

[5] Id. at 386.

[6] Id. at 391.

[7] Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503, 506 (1969).

[8] Bell, 799 F.3d at 25; See also Bell, 799 F.3d at 31 [the 2nd, 4th, 8th, and 9th circuits have ruled on this issue in the same manner as Bell]. There exists an “intra-circuit split in the Third Circuit on this issue. Bell, 799 F.3d at 31; Compare Layshock v. Hermitage Sch. Dist., 750 F.3d 205 (3rd Cir. 2011) with J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3rd Cir. 2011).

[9] Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503, 506 (1969).

[10] Id. at 513-514.

[11] Id.

[12] Morse v. Frederick, 551 U.S. 393 (2007).

[13] Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986).

[14] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).

[15] Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379, 390-391 (5th Cir. 2015).

[16] Id. at 405; but see id. at 394 (“In 1972, [the Fifth Circuit] expressly declined to adopt a rule holding a school’s attempt to regulate off-campus speech under Tinker was per se unconstitutional”).

[17] Id. at 394.

[18] Id. at 399-400.

[19] Id. at 394-395.

[20] Id. at 396.

[21] Id.

[22] Id. at 404-405.

[23] Id. at 414.

[24] Id. at 415-416; Id. at 420-421.

[25] Id. at 422.

[26] Id. at 390-391; Id. at 422.

[27] Id. at 422.

[28] Id.

[29] Tinker, 393 U.S. at 506-508.

[30] Bell, 799 F.3d at 395-396.

[31] Elonis v. United States, 135 S.Ct. 2001, 2002 (2015).

[32] Burge v. Colton Sch. Dist. 53, 2015 U.S. Dist. LEXIS 51596, 11-12 (D. Or. Mar. 3, 2015).

[33] Bell, 799 F.3d at 405.

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