Tag Archives: Student Free Speech


Braeden Burge was bummed.  It was bad enough that he got a C in Health class. On top of that, his mom grounded him for part of the summer. Apparently, Mom did not view a C in Health as anywhere close to acceptable.

What’s an 8th grader to do?  Go to Facebook, of course!  Braeden vented a series of comments, starting with the suggestion that he wanted to “start a petition to get Mrs. Bouck fired, she’s the worst teacher ever.”  Mrs. Bouck would be the Health teacher.  One of Braeden’s friends asked (via Facebook post) what Mrs. Bouck had done, and Braden responded with “She’s just a bitch haha.”  The friend’s retort to this was: “XD HAHAHAHA!!”  And this prompted the post that got Braeden in trouble:

“Ya haha she needs to be shot.”

Braeden did all this from home (grounded, you know) on a day when school was not in session. He did not send it to Mrs. Bouck, nor was she one of his Facebook friends.  In fact, it appears that no teacher or administrator at the school knew about the Facebook posts until a full six weeks later. That’s when the parent of another student anonymously placed a printout of the posting in the school mailbox of the principal.

Now, what would you do?  Imagine that this “she needs to be shot” comment shows up in your school mailbox, but you note that it was written six weeks earlier, and Mrs. Bouck appears to be in good health. What would you do?

Principal Kara Powell called Braeden in for a chat.  The young man was respectful and compliant, quietly accepting the 3.5 day in-school suspension the principal ordered.  The principal then called the mother. The mother objected to the school’s jurisdiction over this incident, noting that it all took place at home.

The case ended up in federal court because the parent alleged that the school’s disciplinary penalty infringed on the student’s right of free speech. After all, this all took place off campus, and there was nothing even close to a major or substantial disruption of school. But the school district’s attorneys argued that “she needs to be shot” was a threat of violence. Threats of violence are not constitutionally protected.

The court ruled in favor of the student. The big problem for the school district was that it did not treat the “threat” like a real threat.  The court enumerated five things the school did not do:

*ask the parents if the boy had access to guns;
*contact the police;
*have Braeden evaluated by a mental health professional;
*discuss the comments with other teachers who knew Braeden; and
*investigate whether he made similar, subsequent comments.

The reasoning seemed to be that if the school thought this Facebook comment was a serious threat, it would have done some or all of these things.  Key Quote:

“Instead, Principal Powell simply required Braeden to sit in a school office near the teachers’ mailboxes for three-and-a-half days.  Without taking some sort of action that would indicate it took the comments seriously, the school can not turn around and argue that Braeden’s comments presented a material and substantial interference with school discipline.”

Once again, we see that being rude toward a teacher, when done off campus, does not usually justify disciplinary action. If this had happened at school, the use of the word “bitch” alone would have been sufficient to justify a short stint in ISS. But since it happened away from campus, the school was left to try to show that it was a threat of violence.  Since the school did not treat it like a real threat, the court was not convinced.

The case is Burge v. Colton School District 53, decided by the federal district court in Oregon on April 17, 2015.





Mary Beth Tinker has filed an amicus curiae (friend of the court) brief in Taylor Bell’s case now pending before the 5th Circuit Court of Appeals. This is the case in which Mr. Bell wrote and recorded a rap (Facebook and YouTube) accusing two coaches at his high school of sexual improprieties with students.  Despite the pervasive vulgarity of the rap and its suggestions of violence against the coaches, the 5th Circuit panel that heard the case concluded that the rap was entitled to constitutional protection as an expression of free speech.  The entire en banc Circuit Court will review that decision on May 12th.

Now, free speech icon Mary Beth Tinker has weighed in on the case.  You may recall Ms. Tinker as the former 8th grader who started the whole fuss about students and the First Amendment by wearing a black armband to school in support of a Christmas truce in Vietnam.  That was in 1965.  Fifty years later Ms. Tinker is still rabble rousing.  In 2013-14 she traveled 25,000 miles by bus and spoke to over 20,000 students on the “Tinker Tour.” The purpose was to provide a “real life civics lesson” to schools and communities.

I wonder if the Tinker Tour stopped in Itawamba, Mississippi, home of Taylor Bell.

The amicus brief was authored by Allyson Ho, Counsel of Record for Ms. Tinker, along with lawyers from the Liberty Institute. The Liberty Institute is the Plano-based advocacy group that has promoted the Texas Religious Freedom Restoration Act and supported the plaintiffs in the endless “candy cane” wars in Plano.

The brief refers to the “disturbing facts of this case.”  It describes the rap as “filled with both vulgar language and violent imagery.”  The rap at issue in the case is characterized as “odious.”  The brief carefully avoids encouraging the Court to rule in favor of Mr. Bell.  Its primary emphasis is to encourage the Court not to do anything to suppress student free speech that is politically or religiously motivated.  The brief urges the Court to make “a narrow ruling on grounds entirely separate and apart from Tinker to avoid inadvertently undermining any form of legitimate student speech, particularly religious and political speech.”

Lots of people are interested in this case.  It presents the 5th Circuit a wonderful opportunity to address the continuing relevance of the on campus vs. off campus distinction in the era of social media.  Mr. Bell won the first round based in part on the fact that the rap was supposedly never played at the school.  After all, cell phones were prohibited by school policy. You know how well that works.

The Dawg will continue to monitor this case. Stay tuned.





Kids in a high school in Des Moines, Iowa recently protested the grand jury decisions in Ferguson, Missouri and New York City. The protest lasted about 15 minutes, during the students’ lunch hour. They held signs, marched, chanted, and eventually laid down in a “die in” for 4.5 minutes.

Apparently none of this caused any significant disturbance at the school. On the video of the incident you can see other students watching, while teachers and the principal look on. In fact, the principal complimented the kids for their social awareness and calling the protest “way cool.”

Well, that’s not exactly the way some members of the general public saw it! The news story I read carried comments from readers. Here’s a short sample:

“…in short, [you students] are idiots. Now get back to class.” Fred.

“Fred, they’re not idiots, their gourds are empty and awaiting the next phase of brainwashing you and I are paying for through taxes and tuition.” Kit.

“…these CHILDREN need to be in class learning something worthwhile instead of using these incidents as an excuse to get out of school. The faculty and principal should be fired for failing to maintain control of the school. What a bunch of morons…..Disgraceful.” Terry.

One reader called the kids “no-nothings.” Fortunately, another reader corrected him, pointing out that the term is “know-nothings.”

From the Dawg’s perspective, the principal should not be fired. He should be honored. He respected student free speech, as is required by the U.S. Constitution. Ironically, we know this is true because of a case that arose in the 1960s in Des Moines, Iowa! Tinker v. Des Moines established that students enjoy the constitutional right of free speech, even while they are at school.

The limitation is that they may not cause a “material and substantial” disruption of school. If this protest had disrupted class, or if the “die in” had impeded traffic flow, the principal would be authorized to take some sort of action. But that didn’t happen here, and the principal had the good sense to monitor the situation without trying to stop it. He did not “fail to maintain control of the school,” as Terry charged. In fact, if he had tried to stop this peaceful protest, he would have likely embroiled the school in litigation that would not have ended well for the Des Moines school district.

So hats off to principal Gary McClanahan. You can see the news story and the protest for yourself at this link: http://www.kcci.com/news/students-stage-die-in-protest/30117074



We’ve come a long way from Tinker v. Des Moines. In that seminal decision, the U.S. Supreme Court held that public school students do not shed their constitutional rights when they enter the schoolhouse.  The case was right for its time—a time of civil unrest and protest, most of it peaceful. Mary Beth Tinker was the poster child for peaceful protest, wearing a simple black armband as a symbol of her support for a Christmas truce in Vietnam.

Now comes Taylor Bell, poster child for the pervasively vulgar culture of 21st Century America.  Mr. Bell published a rap song on Facebook and YouTube.  According to the 5th Circuit, Mr. Bell’s rap is entitled to constitutional protection, the same as Mary Beth Tinker’s armband.   The rap is about as nasty as raps can be.  It includes the N-word, the B-word, the S-word, the P-word, the MF-word and the F-word.

But the offensiveness of the rap goes far beyond the vulgar language.  The rap is personally insulting to identifiable people.  It accuses two coaches of sexual misconduct with students.  It comments on the size of the breasts of one of the coach’s wives (using the T-word).  The young artist suggests that one of the coaches will “get a pistol down your mouth/Pow.”

Pretty much the same as Mary Beth Tinker’s silent protest in support of peace, don’t you see…..

School officials in Itawamba, Mississippi sent Mr. Bell (18 years old) to an alternative school and barred him from extracurricular activities for the remainder of a nine-week grading period.  But the court said that the punishment was illegal, a violation of the constitution. The school district could not produce evidence of any serious disturbance at the school. Classes were taught. Bells rang. Buses ran.  Since there was no “material and substantial disruption” there was no basis for the school to infringe on this off-campus artistic expression.

The court’s majority opinion made much of the fact that the rap was written and produced off campus.  Schools are allowed to prohibit vulgar and lewd expression that occurs at school or a school function, but the court concluded that the rap was done at home and never performed at the school.  The court did not view the omnipresence of technology as having any impact on this.  The dissenting opinion said that this on campus/off campus distinction is arbitrary and “both tortures logic and ignores history.”

I expect most of you agree with the dissenter on that, but the majority of the 5th Circuit did not.  The majority opinion says that the distinction between what happens on campus and what happens off campus remains important.  That’s how they read the Supreme Court’s decisions and they are unwilling to change that without clear guidance from the Supreme Court.

Where does that leave you?  It leaves you largely powerless to restrict or punish student expression that occurs off campus.  The 5th Circuit in this case holds that such expression is constitutionally protected unless it amounts to a “true threat.”  What is a “true threat”? We’ll cover that in a future Law Dawg post.

Your Law Dawg is hoping that this decision will be reviewed by the 5th Circuit en banc.  If it is, we think there is an excellent chance that this decision will be reversed. But unless and until that happens, this is an important precedent in the arena of student free speech.  The case is Bell v. Itawamba County School Board, decided by the 5th Circuit on December 12, 2014.