STUDENT DISCIPLINE HOT TOPICS October 5, 2016 I ...

STUDENT DISCIPLINE

HOT TOPICS

October 5, 2016

I. Introduction

a. Welcome

b. What we will cover

i. Discipline basics

ii. OCR Initiative

iii. Off-campus discipline

iv. Bullying/Social media issues

v. Q & A

II. Discipline basics

a. Rights under the Mississippi Constitution

b. Suspension/expulsion

i. Short term—10 days or less—Goss v. Lopez

1. Minimal due process

2. No right to legal counsel/informal give and take

ii. Long term—more than 10 days

1. More formal due process

2. Right to legal counsel

3. Right to challenge accusers

c. Mississippi discipline statutes

i. 37-7-301(e)

ii. 37-9-71

1. Does not distinguish between long term and short term

removals

2. Aggrieved parent has right to a due process hearing

3. What procedure should be used

Hot Topics Seminar - Discipline - October 5, 2016 1

iii. 37-11-18

1. “subject to automatic expulsion”

2. Does not require expulsion

3. Must consider every case on its own merits

4. Cannot hide behind the policy without considering the

facts of each case

5. Question to be considered: Is there a reason why the

District should back off from its policy requiring

expulsion for bringing a weapon (committing a felony) to

school

iv. 37-11-18.1

1. “disruptive”

2. “habitually disruptive” defined

3. Behavior modification plan

4. Habitually disruptive student subject to expulsion

(compare to 37-13-92)

5. Psychological evaluation “shall” be conducted

v. 37-11-19

vi. 37-11-20 (bullying)

vii. 37-11-29 (reporting wrongful activity)

viii. 37-11-53

ix. 37-11-54

x. 37-11-55

xi. 37-11-57

xii. 43-21-255 (youth court)

xiii. 43-21-621 (youth court)

xiv. Hearings/Record of hearing for appeal purposes

1. Hinds County S.D. v. R.B.

2. Appeals are on the record

III. Off-campus misconduct

a. 37-7-301(e)

i. Impact at school

ii. Material disruption(Tinker)


b. 37-9-71 (same language)

c. Bell v. Itawamba County School Board

IV. Alternative Schools

a. 37-13-92

i. Inconsistent with other discipline statutes (37-11-18.1)

ii. Attorney General Opinion June 13, 1997

b. Request for information by ACLU, OCR

V. Initiatives by OCR and Mississippi Center for Justice

a. Dear Colleague Letter—January 8, 2014

b. On-Site investigations

c. Dear Colleague Letter—September 8, 2016 re SROs

d. MCJ’s proposed due process/discipline policy

i. Parent participation

ii. Standard of review

e. Dear Colleague Letter—August 1, 2016 re special education discipline

VI. Bullying/Social Media Misconduct

a. 37-11-67, -69

b. Criminal statutes

c. First Amendment rights

VII. Conclusion


419 U.S. 565 (1975), 73-898, Goss v. Lopez /**/ div.c1 {text-align: center} /**/

Page 565

419 U.S. 565 (1975)

95 S.Ct. 729, 42 L.Ed.2d 725

Goss

v.

Lopez

No. 73-898

United States Supreme Court

Jan. 22, 1975

Argued October 16, 1974

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

Syllabus

Appellee Ohio public high school students, who had been suspended from school for

misconduct for up to 10 days without a hearing, brought a class action against appellant school

officials seeking a declaration that the Ohio statute permitting such suspensions was

unconstitutional and an order enjoining the officials to remove the references to the suspensions

from the students' records. A three-judge District Court declared that appellees were denied due

process of law in violation of the Fourteenth Amendment because they were "suspended without

hearing prior to suspension or within a reasonable time thereafter," and that the statute and

implementing regulations were unconstitutional, and granted the requested injunction.

Held:

1. Students facing temporary suspension from a public school have property and liberty

interests that qualify for protection under the Due Process Clause of the Fourteenth Amendment.

Pp. 572-576.

[95 S.Ct. 732] (a) Having chosen to extend the right to an education to people of appellees'

class generally, Ohio may not withdraw that right on grounds of misconduct absent fundamentally

fair procedures to determine whether the misconduct has occurred, and must recognize a

student's legitimate entitlement to a public education as a property interest that is protected by the

Due Process Clause, and that may not be taken away for misconduct without observing minimum

procedures required by that Clause. Pp. 573-574.

(b) Since misconduct charges, if sustained and recorded, could seriously damage the

students' reputation, as well as interfere with later educational and employment opportunities, the

State's claimed right to determine unilaterally and without process whether that misconduct has

occurred immediately collides with the Due Process Clause's prohibition against arbitrary

deprivation of liberty. Pp. 574-575.

(c) A 10-day suspension from school is not de minimis and may not be imposed in complete

disregard of the Due Process

Page 566

Clause. Neither the property interest in educational benefits temporarily denied nor the liberty


interest in reputation is so insubstantial that suspensions may constitutionally be imposed by any

procedure the school chooses, no matter how arbitrary. Pp. 575-576.

2. Due process requires, in connection with a suspension of 10 days or less, that the student

be given oral or written notice of the charges against him and, if he denies them, an explanation of

the evidence the authorities have and an opportunity to present his version. Generally, notice and

hearing should precede the student's removal from school, since the hearing may almost

immediately follow the misconduct, but if prior notice and hearing are not feasible, as where the

student's presence endangers persons or property or threatens disruption of the academic

process, thus justifying immediate removal from school, the necessary notice and hearing should

follow as soon as practicable. Pp. 577-584.

372 F.Supp. 1279, affirmed.

WHITE, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART,

and MARSHALL, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and

BLACKMUN and REHNQUIST, JJ., joined, post, p. 584.

67

WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

This appeal by various administrators of the Columbus, Ohio, Public School System (CPSS)

challenges the judgment of a three-judge federal court, declaring that appellees -- various high

school students in the CPSS -- were denied due process of law contrary to the command of the

Fourteenth Amendment in that they were temporarily suspended from their high schools without a

hearing either prior to suspension or within a reasonable time thereafter, and enjoining the

administrators to remove all references to such suspensions from the students' records.

I

Ohio law, Rev.Code Ann. § 3313.64 (1972), provides for free education to all children

between the ages of six and 21. Section 3313.66 of the Code empowers the principal of an Ohio

public school to suspend a pupil for misconduct for up to 10 days or to expel him. In either case,

he must notify the student's parents within 24 hours and state the reasons for his action. A pupil

who is expelled, or his parents, may appeal the decision to the Board of Education, and, in

connection therewith, shall be permitted to be heard at the board meeting. The Board may

reinstate the pupil following the hearing. No similar procedure is provided in § 3313.66 or any

other provision of state law for a suspended student. Aside from a regulation tracking the statute,

at the time of the imposition of the suspensions in this case, the CPSS [95 S.Ct. 733] itself had not

issued any written procedure applicable to suspensions.[1] Nor, so far as the record reflects, had

any of

Page 568

the individual high schools involved in this case.[2] Each, however, had formally or informally

described the conduct for which suspension could be imposed.

The nine named appellees, each of whom alleged that he or she had been suspended from

public high school in Columbus for up to 10 days without a hearing pursuant to § 3313.66, filed an

action under 42 U.S.C. § 1993 against the Columbus Board of Education and various


administrators of the CPSS. The complaint sought a

Page 569

declaration that § 3313.66 was unconstitutional in that it permitted public school administrators to

deprive plaintiffs of their rights to an education without a hearing of any kind, in violation of the

procedural due process component of the Fourteenth Amendment. It also sought to enjoin the

public school officials from issuing future suspensions pursuant to § 3313.66, and to require them

to remove references to the past suspensions from the records of the students in question.[3]

The proof below established that the suspensions arose out of a period of widespread student

unrest in the CPSS during February and March, 1971. Six of the named plaintiffs, Rudolph Sutton,

Tyrone Washington, Susan Cooper, Deborah Fox, Clarence Byars, and Bruce Harris, were

students at the Marion-Franklin High School and were each suspended for 10 days[4] on account

of disruptive or disobedient conduct committed in the [95 S.Ct. 734] presence of the school

administrator who ordered the suspension. One of these, Tyrone Washington, was among a group

of students demonstrating in the school auditorium while a class was being conducted there. He

was ordered by the school principal to leave, refused

Page 570

to do so, and was suspended. Rudolph Sutton, in the presence of the principal, physically attacked

a police officer who was attempting to remove Tyrone Washington from the auditorium. He was

immediately suspended. The other four Marion-Franklin students were suspended for similar

conduct. None was given a hearing to determine the operative facts underlying the suspension,

but each, together with his or her parents, was offered the opportunity to attend a conference,

subsequent to the effective date of the suspension, to discuss the student's future.

Two named plaintiffs, Dwight Lopez and Betty Crome, were students at the Central High

School and McGuffey Junior High School, respectively. The former was suspended in connection

with a disturbance in the lunchroom which involved some physical damage to school property.[5]

Lopez testified that at least 75 other students were suspended from his school on the same day.

He also testified below that he was not a party to the destructive conduct, but was instead an

innocent bystander. Because no one from the school testified with regard to this incident, there is

no evidence in the record indicating the official basis for concluding otherwise. Lopez never had a

hearing.

Betty Crome was present at a demonstration at a high school other than the one she was

attending. There she was arrested together with others, taken to the police station, and released

without being formally charged. Before she went to school on the following day, she was

Page 571

notified that she had been suspended for a 10-day period. Because no one from the school

testified with respect to this incident, the record does not disclose how the McGuffey Junior High

School principal went about making the decision to suspend Crome, nor does it disclose on what

information the decision was based. It is clear from the record that no hearing was ever held.

There was no testimony with respect to the suspension of the ninth named plaintiff, Carl

Smith. The school files were also silent as to his suspension, although as to some, but not all, of

the other named plaintiffs the files contained either direct references to their suspensions or copies


of letters sent to their parents advising them of the suspension.

On the basis of this evidence, the three-judge court declared that plaintiffs were denied due

process of law because they were "suspended without hearing prior to suspension or within a

reasonable time thereafter," and that Ohio Rev.Code Ann. § 3313.66 (1972) and regulations

issued pursuant thereto were unconstitutional in permitting such suspensions.[6] It was ordered

that all references to plaintiffs' suspensions be removed from school files.

Although not imposing upon the Ohio school administrators any particular disciplinary

procedures and leaving them

free to adopt regulations providing for fair suspension procedures which are consonant with the

educational goals of their schools and reflective of the characteristics [95 S.Ct. 735] of their school

and locality,

the District Court declared

Page 572

that there were "minimum requirements of notice and a hearing prior to suspension, except in

emergency situations." In explication, the court stated that relevant case authority would: (1)

permit "[i]mmediate removal of a student whose conduct disrupts the academic atmosphere of the

school, endangers fellow students, teachers or school officials, or damages property"; (2) require

notice of suspension proceedings to be sent to the student's parents within 24 hours of the

decision to conduct them; and (3) require a hearing to be held, with the student present, within 72

hours of his removal. Finally, the court stated that, with respect to the nature of the hearing, the

relevant cases required that statements in support of the charge be produced, that the student and

others be permitted to make statements in defense or mitigation, and that the school need not

permit attendance by counsel.

The defendant school administrators have appealed the three-judge court's decision.

Because the order below granted plaintiffs' request for an injunction -- ordering defendants to

expunge their records -- this Court has jurisdiction of the appeal pursuant to 28 U.S.C. § 1253. We

affirm.

II

At the outset, appellants contend that, because there is no constitutional right to an education

at public expense, the Due Process Clause does not protect against expulsions from the public

school system. This position misconceives the nature of the issue, and is refuted by prior

decisions. The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or

property without due process of law. Protected interests in property are normally "not created by

the Constitution. Rather, they are created and their dimensions are defined" by an independent

source such as state statutes or rules

Page 573

entitling the citizen to certain benefits. Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

Accordingly, a state employee who under state law, or rules promulgated by state officials,

has a legitimate claim of entitlement to continued employment absent sufficient cause for

discharge may demand the procedural protections of due process. Connell v. Higginbotham, 403

U.S. 207 (1971); Wieman v. Updegraff, 344 U.S. 183, 191-192 (1952); Arnett v. Kennedy, 416


U.S. 134, 164 (POWELL, J., concurring), 171 (WHITE, J., concurring and dissenting) (1974). So

may welfare recipients who have statutory rights to welfare as long as they maintain the specified

qualifications. Goldberg v. Kelly, 397 U.S. 254 (1970). Morrissey v. Brewer, 408 U.S. 471 (1972),

applied the limitations of the Due Process Clause to governmental decisions to revoke parole,

although a parolee has no constitutional right to that status. In like vein was Wolff v. McDonnell,

418 U.S. 539 (1974), where the procedural protections of the Due Process Clause were triggered

by official cancellation of a prisoner's good time credits accumulated under state law, although

those benefits were not mandated by the Constitution.

Here, on the basis of state law, appellees plainly had legitimate claims of entitlement to a

public education. Ohio Rev.Code Ann. §§ 3313.48 and 3313.64 (1972 and Supp. 1973) direct

local authorities to provide a free education to all residents between five and 21 years of age, and

a compulsory attendance law requires attendance for a school year of not less than 32 weeks.

Ohio Rev.Code Ann § 3321.04 (1972). It is true that § 3313.66 of the Code permits school

principals to suspend students for up to 10 days; but suspensions may not be imposed without any

grounds whatsoever. All of the schools had their own [95 S.Ct. 736] rules specifying the

Page 574

grounds for expulsion or suspension. Having chosen to extend the right to an education to people

of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct, absent

fundamentally fair procedures to determine whether the misconduct has occurred. Arnett v.

Kennedy, supra at 164 (POWELL, J., concurring), 171 (WHITE, J., concurring and dissenting),

206 (MARSHALL, J., dissenting).

Although Ohio may not be constitutionally obligated to establish and maintain a public school

system, it has nevertheless done so, and has required its children to attend. Those young people

do not "shed their constitutional rights" at the schoolhouse door. Tinker v. Des Moines School Dist.

, 393 U.S. 503, 506 (1969).

The Fourteenth Amendment, as now applied to the States, protects the citizen against the State

itself and all of its creatures -- Boards of Education not excepted.

West Virginia Board of Education v. Barnette, 319 U.S. 624, 637 (1943). The authority possessed

by the State to prescribe and enforce standards of conduct in its schools although concededly very

broad, must be exercised consistently with constitutional safeguards. Among other things, the

State is constrained to recognize a student's legitimate entitlement to a public education as a

property interest which is protected by the Due Process Clause and which may not be taken away

for misconduct without adherence to the minimum procedures required by that Clause.

The Due Process Clause also forbids arbitrary deprivations of liberty. "Where a person's

good name, reputation, honor, or integrity is at stake because of what the government is doing to

him," the minimal requirements of the Clause must be satisfied. Wisconsin v. Constantineau, 400

U.S. 433, 437 (1971); Board of Regents v. Roth, supra, at 573. School authorities here suspended

appellees from school for periods of up to 10 days

Page 575

based on charges.of misconduct. If sustained and recorded, those charges could seriously

damage the students' standing with their fellow pupils and their teachers as well as interfere with


later opportunities for higher education and employment.[7] It is apparent that the claimed right of

the State to determine unilaterally and without process whether that misconduct has occurred

immediately collides with the requirements of the Constitution.

Appellants proceed to argue that, even if there is a right to a public education protected by the

Due Process Clause generally, the Clause comes into play only when the State subjects a student

to a "severe detriment or grievous loss." The loss of 10 days, it is said, is neither severe nor

grievous and the Due [95 S.Ct. 737] Process Clause is therefore of no relevance. Appellants'

argument is again refuted by our prior decisions; for in determining

whether due process requirements apply in the first place, we must look not to the "weight" but to

the nature of the interest

Page 576

at stake.

Board of Regents v. Roth, supra, at 570-571. Appellees were excluded from school only

temporarily, it is true, but the length and consequent severity of a deprivation, while another factor

to weigh in determining the appropriate form of hearing, "is not decisive of the basic right" to a

hearing of some kind. Fuentes v. Shevin, 407 U.S. 67, 86 (1972). The Court's view has been that,

as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether

account must be taken of the Due Process Clause. Sniadach v. Family Finance Corp., 395 U.S.

337, 342 (1969) (Harlan, J., concurring); Boddie v. Connecticut, 401 U.S. 371, 378-379 (1971);

Board of Regents v. Roth, supra, at 570 n. 8. A 10-day suspension from school is not de minimis,

in our view, and may not be imposed in complete disregard of the Due Process Clause.

A short suspension is, of course, a far milder deprivation than expulsion. But, "education is

perhaps the most important function of state and local governments," Brown v. Board of Education

, 347 U.S. 483, 493 (1954), and the total exclusion from the educational process for more than a

trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the

suspended child. Neither the property interest in educational benefits temporarily denied nor the

liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may

constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.[8]

Page 577

III

"Once it is determined that due process applies, the question remains what process is due."

Morrissey v. Brewer, 408 U.S. at 481. We turn to that question, fully

Page 578

realizing, as our cases regularly do, that the interpretation and application of the Due Process

Clause are intensely practical matters, and that "[t]he very nature of due process negates any

concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria

Workers v. McElroy, 367 U.S. 886, 895 (1961). We are also mindful of our own admonition:

Judicial interposition in the operation of the public school system of the Nation raises problems

requiring care and restraint. . . . By and large, public education in our Nation is committed to the

control of state and local authorities.

Epperson v. Arkansas, 393 U.S. 97, 104 (1968).


There are certain benchmarks to guide us, however. Mullane v. Central Hanover Trust Co.,

339 U.S. 306

Page 579

(1950), a case -- often invoked by later opinions, said that

[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause

but there can be no doubt that, at a minimum they require that deprivation of life, liberty or property

by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the

case.

Id. at 313. "The fundamental requisite of due process of law is the opportunity to be heard,"

Grannis v. Ordean, 234 U.S. 385, 394 (1914), a right that "has little reality or worth unless one is

informed that the matter is pending and can choose for himself whether to . . . contest." Mullane v.

Central Hanover Trust Co., supra, at 314. See also Armstrong v. Manzo, 380 U.S. 545, 550

(1965); Anti-Fascist Committee v. McGrath, 341 U.S. 123, 168-169 (1951) (Frankfurter, J.,

concurring). At the very minimum, therefore, students facing suspension and the consequent

interference with a protected property interest must be given some kind of notice and afforded

some kind of hearing. "Parties whose rights are to be affected are entitled to be heard; and in

order that they may enjoy that right they must first be notified." Baldwin v. Hale, 1 Wall. 223, 233

(1864).

It also appears from our cases that the timing and content of the notice and the nature of the

hearing will depend on [95 S.Ct. 739] appropriate accommodation of the competing interests

involved. Cafeteria Workers v. McElroy, supra, at 895; Morrissey v. Brewer, supra, at 481. The

student's interest is to avoid unfair or mistaken exclusion from the educational process, with all of

its unfortunate consequences. The Due Process Clause will not shield him from suspensions

properly imposed, but it disserves both his interest and the interest of the State if his suspension

is, in fact, unwarranted. The concern would be mostly academic if the disciplinary process were a

totally accurate, unerring process, never mistaken and never

Page 580

unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although

proceeding in utmost good faith, frequently act on the reports and advice of others; and the

controlling facts and the nature of the conduct under challenge are often disputed. The risk of error

is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or

interference with the educational process.

The difficulty is that our schools are vast and complex. Some modicum of discipline and order

is essential if the educational function is to be performed. Events calling for discipline are frequent

occurrences, and sometimes require immediate, effective action. Suspension is considered not

only to be a necessary tool to maintain order, but a valuable educational device. The prospect of

imposing elaborate hearing requirements in every suspension case is viewed with great concern,

and many school authorities may well prefer the untrammeled power to act unilaterally,

unhampered by rules about notice and hearing. But it would be a strange disciplinary system in an

educational institution if no communication was sought by the disciplinarian with the student in an

effort to inform him of his dereliction and to let him tell his side of the story in order to make sure


that an injustice is not done. "[F]airness can rarely be obtained by secret, one-sided determination

of facts decisive of rights. . . ."

Secrecy is not congenial to truth-seeking, and self-righteousness gives too slender an assurance

of rightness. No better instrument has been devised for arriving at truth than to give a person in

jeopardy of serious loss notice of the case against him and opportunity to meet it.

Anti-Fascist Committee v. McGrath, supra, at 170, 171-172 (Frankfurter, J., concurring).[9]

Page 581

We do not believe that school authorities must be totally free from notice and hearing

requirements if their schools are to operate with acceptable [95 S.Ct. 740] efficiency. Students

facing temporary suspension have interests qualifying for protection of the Due Process Clause,

and due process requires, in connection with a suspension of 10 days or less, that the student be

given oral or written notice of the charges against him and, if he denies them, an explanation of

the evidence the authorities have and an opportunity to present his side of the story. The Clause

requires at least these rudimentary precautions against unfair or mistaken findings of misconduct

and arbitrary exclusion from school.[10]

Page 582

There need be no delay between the time "notice" is given and the time of the hearing. In the

great majority of cases the disciplinarian may informally discuss the alleged misconduct with the

student minutes after it has occurred. We hold only that, in being given an opportunity to explain

his version of the facts at this discussion, the student first be told what he is accused of doing and

what the basis of the accusation is. Lower courts which have addressed the question of the nature

of the procedures required in short suspension cases have reached the same conclusion. Tate v.

Board of Education, 453 F.2d 975, 979 (CA8 1972); Vail v. Board of Education, 354 F.Supp. 592,

603 (NH 1973). Since the hearing may occur almost immediately following the misconduct, it

follows that as a general rule notice and hearing should precede removal of the student from

school. We agree with the District Court, however, that there are recurring situations in which prior

notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger

to persons or property or an ongoing threat of disrupting the academic process may be

immediately removed from school. In such cases, the necessary notice and rudimentary hearing

should follow

Page 583

as soon as practicable, as the District Court indicated.

In holding as we do, we do not believe that we have imposed procedures on school

disciplinarians which are inappropriate in a classroom setting. Instead we have imposed

requirements which are, if anything, less than a fair-minded school principal would impose upon

himself in order to avoid unfair suspensions. Indeed, according to the testimony of the principal of

Marion-Franklin High School, that school had an informal procedure, remarkably similar to that

which we now require, applicable to suspensions generally but which was not followed in this

case. Similarly, according to the most recent memorandum applicable to the entire CPSS, see n.

1, supra, school principals in the CPSS are now required by local rule to provide at least as much

as the constitutional minimum which we have described.


We stop short of construing the Due Process Clause to require, countrywide, that hearings in

connection with short suspensions must afford the student the opportunity to secure counsel, to

confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify

his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each

such case even truncated trial-type procedures might well overwhelm administrative facilities in

many places and, by [95 S.Ct. 741] diverting resources, cost more than it would save in

educational effectiveness. Moreover, further formalizing the suspension process and escalating its

formality and adversary nature may not only make it too costly as a regular disciplinary tool, but

also destroy its effectiveness as part of the teaching process.

On the other hand, requiring effective notice and informal hearing permitting the student to

give his version of the events will provide a meaningful hedge against erroneous action. At least

the disciplinarian will be alerted to the existence of disputes about facts and arguments

Page 584

about cause and effect. He may then determine himself to summon the accuser, permit cross-

examination, and allow the student to present his own witnesses. In more difficult cases, he may

permit counsel. In any event, his discretion will be more informed and we think the risk of error

substantially reduced.

Requiring that there be at least an informal give-and-take between student and disciplinarian,

preferably prior to the suspension, will add little to the factfinding function where the disciplinarian

himself has witnessed the conduct forming the basis for the charge. But things are not always as

they seem to be, and the student will at least have the opportunity to characterize his conduct and

put it in what he deems the proper context.

We should also make it clear that we have addressed ourselves solely to the short

suspension, not exceeding 10 days. Longer suspensions or expulsions for the remainder of the

school term, or permanently, may require more formal procedures. Nor do we put aside the

possibility that, in unusual situations, although involving only a short suspension, something more

than the rudimentary procedures will be required.

IV

The District Court found each of the suspensions involved here to have occurred without a

hearing, either before or after the suspension, and that each suspension was therefore invalid and

the statute unconstitutional insofar as it permits such suspensions without notice or hearing.

Accordingly, the judgment is

Affirmed.

POWELL, J., dissenting

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and

MR. JUSTICE REHNQUIST join, dissenting.

The Court today invalidates an Ohio statute that permits student suspensions from school

without a hearing

Page 585

"for not more than ten days."[1] The decision unnecessarily opens avenues for judicial intervention

in the operation of our public schools that may affect adversely the quality of education. The Court


holds for the first time that the federal courts, rather than educational officials and state

legislatures, have the authority to determine the rules applicable to routine classroom discipline of

children and teenagers in the public schools. It justifies this unprecedented intrusion into the

process of elementary and secondary education by identifying a new constitutional right: the right

of a student not to be suspended for as much as a single day without notice and a due process

hearing either before or promptly following the suspension.[2]

[95 S.Ct. 742] The Court's decision rests on the premise that, under Ohio law, education is a

property interest protected by the Fourteenth Amendment's Due Process Clause, and therefore

that any suspension requires notice and a hearing.[3] In my view, a student's interest in education

is

Page 586

not infringed by a suspension within the limited period prescribed by Ohio law. Moreover, to the

extent that there may be some arguable infringement, it is too speculative, transitory, and

insubstantial to justify imposition of a constitutional rule.

I

Although we held in San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 35

(1973), that education is not a right protected by the Constitution, Ohio has elected by statute to

provide free education for all youths age six to 21, Ohio Rev.Code Ann. §§ 3313.48, 3313.64

(1972 and Supp. 1973), with children under 18 years of age being compelled to attend school. §

3321.01 et seq. State law, therefore, extends the right of free public school education to Ohio

students in accordance with the education laws of that State. The right or entitlement to education

so created is protected in a proper case by the Due Process Clause. See, e.g., Board of Regents

v. Roth, 408 U.S. 564 (1972); Arnett v. Kennedy, 416 U.S. 134, 164 (1974) (POWELL, J.,

concurring). In my view, this is not such a case.

In identifying property interests subject to due process protections, the Court's past opinions

make clear that these interests "are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law." Board of Regents v.

Roth, supra, at 577 (emphasis supplied). The Ohio statute that creates the right to a "free"

education also explicitly authorizes a principal to suspend a student for as much as 10 days. Ohio

Rev.Code Ann. §§ 3313.48, 3313.64, 3313.66 (1972 and Supp. 1973). Thus, the very legislation

which "defines" the "dimension" of the student's entitlement, while providing a right to education

generally, does not establish this right free of discipline imposed in accord with Ohio law. Rather,

the right is

Page 587

encompassed in the entire package of statutory provisions governing education in Ohio -- of which

the power to suspend is one.

The Court thus disregards the basic structure of Ohio law in posturing this case as if Ohio

had conferred an unqualified right to education, thereby compelling the school authorities to

conform to due process procedures in imposing the most routine discipline.[4]

[95 S.Ct. 743] But however one may define the entitlement to education provided by Ohio law,

I would conclude that a deprivation of not more than 10 days' suspension from school, imposed as


a routine disciplinary measure, does not assume constitutional dimensions. Contrary to the Court's

assertion, our cases support, rather than "refute" appellants'

Page 588

argument that "the Due Process Clause . . . comes into play only when the State subjects a

student to a `severe detriment or grievous loss.'" Ante at 575. Recently, the Court reiterated

precisely this standard for analyzing due process claims:

Whether any procedural protections are due depends on the extent to which an individual will be

"condemned to suffer grievous loss." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.

123, 168 (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, 263

(1970).

Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (emphasis supplied). In Morrissey, we applied that

standard to require due process procedures for parole revocation on the ground that revocation

"inflicts a `grievous loss' on the parolee, and often on others." Id. at 482. See also Board of

Regents v. Roth, 408 U.S. at 573 ("seriously damage" reputation and standing); Bell v. Burson,

402 U.S. 535, 539 (1971) ("important interests of the licensees"); Boddie v. Connecticut, 401 U.S.

371, 379 (1971) ("significant property interest").[5]

The Ohio suspension statute allows no serious or significant

Page 589

infringement of education. It authorizes only a maximum suspension of eight school days, less

than 5% of the normal 180-day school year. Absences of such limited duration will rarely affect a

pupil's opportunity to learn or his scholastic performance. Indeed, the record in this case reflects

no educational injury to appellees. Each completed the semester in which the suspension

occurred and performed at least as well as he or she had in previous years.[6] Despite the Court's

unsupported speculation that a suspended student could be "seriously damage[d]" (ante at 575),

there is no factual showing of any such damage to appellees.

The Court also relies on a perceived deprivation of "liberty" resulting from any suspension,

arguing -- again without factual support in the record pertaining to these appellees -- that a

suspension harms a student's reputation. In view of the Court's decision in Board of Regents v.

Roth, supra, I would have thought that this argument was plainly [95 S.Ct. 744] untenable.

Underscoring the need for "serious damage" to reputation, the Roth Court held that a nontenured

teacher who is not rehired by a public university could not claim to suffer sufficient reputational

injury to require constitutional protections.[7] Surely a brief suspension is of less serious

consequence to the reputation of a teenage student.

II

In prior decisions, this Court has explicitly recognized that school authorities must have broad

discretionary authority

Page 590

in the daily operation of public schools. This includes wide latitude with respect to maintaining

discipline and good order. Addressing this point specifically, the Court stated in Tinker v. Des

Moines School Dist., 393 U.S. 503, 507 (1969):

[T]he Court has repeatedly emphasized the need for affirming the comprehensive authority of the


States and of school officials, consistent with fundamental constitutional safeguards, to prescribe

and control conduct in the schools.[8]

Such an approach properly recognizes the unique nature of public education and the

correspondingly limited role of the judiciary in its supervision. In Epperson v. Arkansas, 393 U.S.

97, 104 (1968), the Court stated:

By and large, public education in our Nation is committed to the control of state and local

authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily

operation of school systems and which do not directly and sharply implicate basic constitutional

values.

The Court today turns its back on these precedents. It can hardly seriously be claimed that a

school principal's decision to suspend a pupil for a single day would "directly and sharply implicate

basic constitutional values." Ibid.

Moreover, the Court ignores the experience of mankind, as well as the long history of our law,

recognizing

Page 591

that there are differences which must be accommodated in determining the rights and duties of

children as compared with those of adults. Examples of this distinction abound in our law: in

contracts, in tort, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the

right to vote and to hold office. Until today, and except in the special context of the First

Amendment issue in Tinker, the educational rights of children and teenagers in the elementary

and secondary schools have not been analogized to the rights of adults or to those accorded

college students. Even with respect to the First Amendment, the rights of children have not been

regarded as "coextensive with those of adults." Tinker, supra, at 515 (STEWART, J., concurring).

A

I turn now to some of the considerations which support the Court's former view regarding the

comprehensive authority of the States and school officials "to prescribe and control conduct in the

schools." Id. at 507. Unlike the divergent and even sharp conflict of interests usually [95 S.Ct. 745]

present where due process rights are asserted, the interests here implicated -- of the State

through its schools and of the pupils -- are essentially congruent.

The State's interest, broadly put, is in the proper functioning of its public school system for

the benefit of all pupils and the public generally. Few rulings would interfere more extensively in

the daily functioning of schools than subjecting routine discipline to the formalities and judicial

oversight of due process. Suspensions are one of the traditional means -- ranging from keeping a

student after class to permanent expulsion -- used to maintain discipline in the schools. It is

common knowledge that maintaining order and reasonable decorum

Page 592

in school buildings and classrooms is a major educational problem, and one which has increased

significantly in magnitude in recent years.[9] Often the teacher, in protecting the rights of other

children to an education (if not his or their safety), is compelled to rely on the power to suspend.

The facts set forth in the margin[10] leave little room for doubt as to the magnitude of the

disciplinary problem in the public schools, or as to the extent of reliance upon the right to suspend.


They also demonstrate that, if hearings were required for a substantial percentage of short-term

suspensions, school authorities would have time to do little else.

B

The State's generalized interest in maintaining an orderly school system is not incompatible

with the individual

Page 593

interest of the student. Education in any meaningful sense includes the inculcation of an

understanding in each pupil of the necessity of rules and obedience thereto. This understanding is

no less important than learning to read and write. One who does not comprehend the meaning

and necessity of discipline is handicapped not merely in his education but throughout his

subsequent life. In an age when the home and church play a diminishing role in shaping the

character and value judgments of the young, a heavier responsibility falls upon the schools. When

an immature student merits censure for his conduct, he is rendered a disservice if appropriate

sanctions are not applied or if procedures for their application are so formalized as to invite a

challenge to the teacher's authority[11] -- an invitation which rebellious or even merely spirited

teenagers are likely to accept.

The lesson of discipline is not merely a matter of the student's self-interest in the shaping of

his own character and personality; it provides an early understanding [95 S.Ct. 746] of the

relevance to the social compact of respect for the rights of others. The classroom is the laboratory

in which this lesson of life is best learned. Mr. Justice Black summed it up:

School discipline, like parental discipline, is an integral and important part of training our children

to be good citizens -- to be better citizens.

Tinker, 393 U.S. at 524 (dissenting opinion).

In assessing in constitutional terms the need to protect pupils from unfair minor discipline by

school authorities, the Court ignores the commonality of interest of the State and pupils in the

public school system. Rather, it thinks in traditional judicial terms of an adversary

Page 594

situation. To be sure, there will be the occasional pupil innocent of any rule infringement who is

mistakenly suspended or whose infraction is too minor to justify suspension. But, while there is no

evidence indicating the frequency of unjust suspensions, common sense suggests that they will

not be numerous in relation to the total number, and that mistakes or injustices will usually be

righted by informal means.

C

One of the more disturbing aspects of today's decision is its indiscriminate reliance upon the

judiciary, and the adversary process, as the means of resolving many of the most routine

problems arising in the classroom. In mandating due process procedures the Court

misapprehends the reality of the normal teacher-pupil relationship. There is an ongoing

relationship, one in which the teacher must occupy many roles -- educator, adviser, friend, and, at

times, parent-substitute.[12] It is rarely adversary in nature except with respect to the chronically

disruptive or insubordinate pupil whom the teacher must be free to discipline without frustrating

formalities.[13]


The Ohio statute, providing as it does for due notice both to parents and the Board, is

compatible with the teacher-pupil relationship and the informal resolution of mistaken disciplinary

action. We have relied for generations upon the experience, good faith and dedication of those

who staff our public schools,[14] and the nonadversary means of airing grievances [95 S.Ct. 747]

that always have been available to pupils and their parents. One would have thought before

today's opinion that this informal method of resolving differences was more compatible with the

interests of all concerned than resort to any constitutionalized procedure, however blandly it may

be defined by the Court.

D

In my view, the constitutionalizing of routine classroom decisions not only represents a

significant and unwise extension of the Due Process Clause, but it also was quite unnecessary in

view of the safeguards prescribed by the Ohio statute. This is demonstrable from a comparison

Page 596

of what the Court mandates as required by due process with the protective procedures it finds

constitutionally insufficient

The Ohio statute, limiting suspensions to not more than eight school days, requires written

notice including the "reasons therefor" to the student's parents and to the Board of Education

within 24 hours of any suspension. The Court only requires oral or written notice to the pupil, with

no notice being required to the parents or the Board of Education. The mere fact of the statutory

requirement is a deterrent against arbitrary action by the principal. The Board, usually elected by

the people and sensitive to constituent relations, may be expected to identify a principal whose

record of suspensions merits inquiry. In any event, parents placed on written notice may exercise

their rights as constituents by going directly to the Board or a member thereof if dissatisfied with

the principal's decision.

Nor does the Court's due process "hearing" appear to provide significantly more protection

than that already available. The Court holds only that the principal must listen to the student's

"version of the events," either before suspension or thereafter -- depending upon the

circumstances. Ante at 583. Such a truncated "hearing" is likely to be considerably less

meaningful than the opportunities for correcting mistakes already available to students and

parents. Indeed, in this case all of the students and parents were offered an opportunity to attend

a conference with school officials.

In its rush to mandate a constitutional rule, the Court appears to give no weight to the

practical manner in which suspension problems normally would be worked out under Ohio law.[15]

One must doubt, then, whether

Page 597

the constitutionalization of the student-teacher relationship, with all of its attendant doctrinal and

practical difficulties, will assure in any meaningful sense greater protection than that already

afforded under Ohio law.

III

No one can foresee the ultimate frontiers of the new "thicket" the Court now enters. Today's


ruling appears to sweep within the protected interest in education a multitude of discretionary

decisions in the educational process. Teachers and other school authorities are required to make

many decisions that may have serious consequences for the pupil. They must decide, for

example, how to grade the student's work, whether a student passes or fails a course,[16] whether

he is to be promoted, whether he is required to take certain subjects, whether he may be excluded

from interscholastic athletics[17] or other extracurricular activities, whether he may be removed

from one school [95 S.Ct. 748] and sent to another, whether he may be bused long distances

when available schools are nearby, and whether he should be placed in a "general," "vocational,"

or "college-preparatory" track.

In these and many similar situations, claims of impairment of one's educational entitlement

identical in principle to those before the Court today can be asserted with equal or greater

justification. Likewise, in many of these situations, the pupil can advance the same types of

speculative and subjective injury given critical weight in this case. The District Court, relying upon

generalized opinion evidence, concluded that a suspended student may suffer psychological injury

in one or more of

Page 598

the ways set forth in the margin below.[18] The Court appears to adopt this rationale. See ante at

575.

It hardly need be said that, if a student, as a result of a day's suspension, suffers "a blow" to

his "self esteem," "feels powerless," views "teachers with resentment," or feels "stigmatized by his

teachers," identical psychological harms will flow from many other routine and necessary school

decisions. The student who is given a failing grade, who is not promoted, who is excluded from

certain extracurricular activities, who is assigned to a school reserved for children of less than

average ability, or who is placed in the "vocational", rather than the "college preparatory," track, is

unlikely to suffer any less psychological injury than if he were suspended for a day for a relatively

minor infraction.[19]

Page 599

If, as seems apparent, the Court will now require due process procedures whenever such

routine school decisions are challenged, the impact upon public education will be serious indeed.

The discretion and Judgment of federal courts across the land often will be substituted for that of

the 50 state legislatures, the 14,000 school boards,[20] and the 2,000,000[21] teachers who

heretofore have been responsible for the administration of the American public school system. If

the Court perceives a rational and analytically sound distinction between the discretionary decision

by school authorities to suspend a pupil for a brief period, and the types of discretionary [95 S.Ct.

749] school decisions described above, it would be prudent to articulate it in today's opinion.

Otherwise, the federal courts should prepare themselves for a vast new role in society.

IV

Not so long ago, state deprivations of the most significant forms of state largesse were not

thought to require due process protection on the ground that the deprivation resulted only in the

loss of a state-provided "benefit." E.g., Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46

(1950), aff'd by an equally divided Court, 341 U.S. 918 (1951). In recent years the Court, wisely in


my view, has rejected the "wooden distinction between `rights' and `privileges,'" Board of Regents

v. Roth, 408 U.S. at 571, and looked instead to the significance of the state-created or state-

enforced right and to

Page 600

the substantiality of the alleged deprivation. Today's opinion appears to abandon this reasonable

approach by holding, in effect, that government infringement of any interest to which a person is

entitled, no matter what the interest or how inconsequential the infringement, requires

constitutional protection. As it is difficult to think of any less consequential infringement than

suspension of a junior high school student for a single day, it is equally difficult to perceive any

principled limit to the new reach of procedural due process.[22]

---------

Notes: [1] At the time of the events involved in this case, the only administrative regulation on this subject

was § 1010.04 of the Administrative Guide of the Columbus Public Schools which provided:

"Pupils may be suspended or expelled from school in accordance with the provisions of Section

3313.66 of the Revised Code." Subsequent to the events involved in this lawsuit, the Department

of Pupil Personnel of the CPSS issued three memoranda relating to suspension procedures, dated

August 16, 1971, February 21, 1973, and July 10, 1973, respectively. The first two are

substantially similar to each other, and require no factfinding hearing at any time in connection

with a suspension. The third, which was apparently in effect when this case was argued, places

upon the principal the obligation to "investigate" "before commencing suspension procedures";

and provides as part of the procedures that the principal shall discuss the case with the pupil, so

that the pupil may "be heard with respect to the alleged offense," unless the pupil is "unavailable"

for such a discussion or "unwilling" to participate in it. The suspensions involved in this case

occurred, and records thereof were made, prior to the effective date of these memoranda. The

District Court's judgment, including its expunction order, turns on the propriety of the procedures

existing at the time the suspensions were ordered and by which they were imposed. [2] According to the testimony of Phillip Fulton, the principal of one of the high schools involved in

this case, there was an informal procedure applicable at the Marion-Franklin High School. It

provided that, in the routine case of misconduct, occurring in the presence of a teacher, the

teacher would describe the misconduct on a form provided for that purpose and would send the

student, with the form, to the principal's office. There, the principal would obtain the student's

version of the story, and, if it conflicted with the teacher's written version, would send for the

teacher to obtain the teacher's oral version -- apparently in the presence of the student. Mr. Fulton

testified that, if a discrepancy still existed, the teacher's version would be believed and the

principal would arrive at a disciplinary decision based on it. [3] The plaintiffs sought to bring the action on behalf of all students of the Columbus Public

Schools suspended on or after February, 1971, and a class action was declared accordingly.

Since the complaint sought to restrain the "enforcement" and "operation" of a state statute "by

restraining the action of any officer of such state in the enforcement or execution of such statute,"

a three-judge court was requested pursuant to 28 U.S.C. § 2281 and convened. The students also


alleged that the conduct for which they could be suspended was not adequately defined by Ohio

law. This vagueness and overbreadth argument was rejected by the court below, and the students

have not appealed from this part of the court's decision. [4] Fox was given two separate 10-day suspensions for misconduct occurring on two separate

occasions -- the second following immediately upon her return to school. In addition to his

suspension, Sutton was transferred to another school. [5] Lopez was actually absent from school, following his suspension, for over 20 days. This seems

to have occurred because of a misunderstanding as to the length of the suspension. A letter sent

to Lopez after he had been out for over 10 days purports to assume that, being over compulsory

school age, he was voluntarily staying away. Upon asserting that this was not the case, Lopez was

transferred to anther school. [6] In its judgment, the court stated that the statute is unconstitutional in that it provides "for

suspension . . . without first affording the student due process of law." (Emphasis supplied.)

However, the language of the judgment must be read in light of the language in the opinion, which

expressly contemplates that, under some circumstances, students may properly be removed from

school before a hearing is held, so long as the hearing follows promptly. [7] Appellees assert in their brief that four of 12 randomly selected Ohio colleges specifically

inquire of the high school of every applicant for admission whether the applicant has ever been

suspended. Brief for Appellees 34-35 and n. 40. Appellees also contend that many employers

request similar information. Ibid.

Congress has recently enacted legislation limiting access to information contained in the files of a

school receiving federal funds. Section 513 of the Education Amendments of 1974, Pub.L. 93-380,

88 Stat. 571, 20 U.S.C. § 1232g (1970 ed., Supp. IV), adding § 438 to the General Education

Provisions Act. That section would preclude release of "verified reports of serious or recurrent

behavior patterns" to employers without written consent of the student's parents. While subsection

(b)(1)(b) permits release of such information to "other schools . . . in which the student intends to

enroll," it does so only upon condition that the parent be advised of the release of the information

and be given an opportunity at a hearing to challenge the content of the information to insure

against inclusion of inaccurate or misleading information. The statute does not expressly state

whether the parent can contest the underlying basis for a suspension, the fact of which is

contained in the student's school record. [8] Since the landmark decision of the Court of Appeals for the Fifth Circuit in Dixon v. Alabama

State Board of Education, 294 F.2d 150, cert. denied, 368 U.S. 930 (1961), the lower federal

courts have uniformly held the Due Process Clause applicable to decisions made by tax supported

educational institutions to remove a student from the institution long enough for the removal to be

classified as an expulsion. Hagopian v. Knowlton, 470 F.2d 201, 211 (CA2 1972); Wasson v.

Trowbridge, 382 F.2d 807, 812 (CA2 1967); Esteban v. Central Missouri State College, 415 F.2d

1077, 1089 (CA8 1969) , cert. denied, 398 U.S. 965 (1970); Vought v. Van Buren Public Schools,

306 F.Supp. 1388 (ED Mich.1969); Whitfield v. Simpson, 312 F.Supp. 889 (ED Ill.1970); Fielder v.

Board of Education of School District of Winnebago, Neb., 346 F.Supp. 722, 729 (Feb. 1972);

DeJesus v. Penberthy, 344 F.Supp. 70, 74 (Conn.1972); Soglin v. Kauffman, 295 F.Supp. 978,


994 (WD Wis.1968), aff'd, 418 F.2d 163 (CA7 1969); Stricklin v. Regents of University of

Wisconsin, 297 F.Supp. 416, 420 (WD Wis.1969), appeal dismissed, 420 F.2d 1257 (CA7 1970);

Buck v. Carter, 308 F.Supp. 1246 (WD Wis.1970); General Order on Judicial Standards of

Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher

Education, 45 F.R.D. 133, 147-148 (WD Mo.1968) (en banc). The lower courts have been less

uniform, however, on the question whether removal from school for some shorter period may ever

be so trivial a deprivation as to require no process, and, if so, how short the removal must be to

qualify. Courts of Appeals have held or assumed the Due Process Clause applicable to long

suspensions, Pervis v. LaMarque Ind. School Dist., 466 F.2d 1054 (CA5 1972); to indefinite

suspensions, Sullivan v. Houston Ind. School Dist., 475 F.2d 1071 (CA5), cert. denied, 414 U.S.

1032 (1973); to the addition of a 30-day suspension to a 10-day suspension, Williams v. Dade

County School Board, 441 F.2d 299 (CA5 1971); to a 10-day suspension, Black Students of North

Fort Myers Jr.-Sr. High School v. Williams, 470 F.2d 957 (CA5 1972); to "mild" suspensions,

Farrell v. Joel, 437 F.2d 160 (CA2 1971), and Tate v. Board of Education, 453 F.2d 975 (CA8

1972); and to a three-day suspension, Shanley v. Northeast Ind. School Dist., Bear County,

Texas, 462 F.2d 960, 967 n. 4 (CA5 1972); but inapplicable to a seven-day suspension, Linwood

v. Board of Ed. of City of Peoria, 463 F.2d 763 (CA7), cert. denied, 409 U.S. 1027 (1972); to a

three-day suspension, Dunn v. Tyler Ind. School Dist., 460 F.2d 137 (CA5 1972); to a suspension

for not "more than a few days," Murray v. West Baton Rouge Parish School Board, 472 F.2d 438

(CA5 1973); and to all suspensions, no matter how short, Black Coalition v. Portland School

District No. 1, 484 F.2d 1040 (CA9 1973). The Federal District Courts have held the Due Process

Clause applicable to an interim suspension pending expulsion proceedings in Stricklin v. Regents

of University of Wisconsin, supra, and Buck v. Carter, supra; to a 10-day suspension, Banks v.

Board of Public Instruction of Dade County, 314 F.Supp. 285 (SD Fla.1970), vacated, 401 U.S.

988 (1971) (for entry of a fresh decree so that a timely appeal might be taken to the Court of

Appeals), aff'd, 450 F.2d 1103 (CA5 1971); to suspensions of under five days, Vail v. Board of

Education of Portsmouth School Dist., 354 F.Supp. 592 (NH 1973); and to all suspensions, Mills v.

Board of Education of the Dist. of Columbia, 348 F.Supp. 866 (DC 1972), and Givens v. Poe, 346

F.Supp. 202 (WDNC 1972); but inapplicable to suspensions of 25 days, Hernandez v. School

District Number One, Denver, Colorado, 315 F.Supp. 289 (Colo.1970); to suspensions of 10 days,

Baker v. Downey City Board of Education, 307 F.Supp. 517 (CD Cal.1969); and to suspensions of

eight days, Hatter v. Los Angeles City High School District, 310 F.Supp. 1309 (CD Cal.1970),

rev'd on other grounds, 452 F.2d 673 (CA9 1971). In the cases holding no process necessary in

connection with short suspensions, it is not always clear whether the court viewed the Due

Process Clause as inapplicable, or simply felt that the process received was "due" even in the

absence of some kind of hearing procedure. [9] The facts involved in this case illustrate the point. Betty Crome was suspended for conduct

which did not occur on school grounds, and for which mass arrests were made -- hardly

guaranteeing careful individualized factfinding by the police or by the school principal. She claims

to have been involved in no misconduct. However, she was suspended for 10 days without ever

being told what she was accused of doing or being given an opportunity to explain her presence


among those arrested. Similarly, Dwight Lopez was suspended, along with many others, in

connection with a disturbance in the lunchroom. Lopez says he was not one of those in the

lunchroom who was involved. However, he was never told the basis for the principal's belief that

he was involved, nor was he ever given an opportunity to explain his presence in the lunchroom.

The school principals who suspended Crome and Lopez may have been correct on the merits, but

it is inconsistent with the Due Process Clause to have made the decision that misconduct had

occurred without at some meaningful time giving Crome or Lopez an opportunity to persuade the

principals otherwise.

We recognize that both suspensions were imposed during a time of great difficulty for the school

administrations involved. At least in Lopez' case, there may have been an immediate need to send

home everyone in the lunchroom in order to preserve school order and property; and the

administrative burden of providing 75 "hearings" of any kind is considerable. However, neither

factor justifies a disciplinary suspension without at any time gathering facts relating to Lopez

specifically, confronting him with them, and giving him an opportunity to explain. [10] Appellants point to the fact that some process is provided under Ohio law by way of judicial

review. Ohio Rev.Code Ann. § 2506.01 (Supp. 1973). Appellants do not cite any case in which this

general administrative review statute has been used to appeal from a disciplinary decision by a

school official. If it be assumed that it could be so used, it is for two reasons insufficient to save

inadequate procedures at the school level. First, although new proof may be offered in a §

2501.06 proceeding, Shaker Coventry Corp. v. Shaker Heights Planning Comm'n, 18 Ohio Op.2d

272, 176 N.E.2d 332 (1961), the proceeding is not de novo. In re Locke, 33 Ohio App.2d 177, 294

N.E.2d 230 (1972). Thus, the decision by the school -- even if made upon inadequate procedures -

- is entitled to weight in the court proceeding. Second, without a demonstration to the contrary, we

must assume that delay will attend any § 2501.06 proceeding, that the suspension will not be

stayed pending hearing, and that the student meanwhile will irreparably lose his educational

benefits. [1] The Ohio statute, Ohio Rev.Code Ann. § 3313.66 (1972), actually is a limitation on the time-

honored practice of school authorities themselves determining the appropriate duration of

suspensions. The statute allows the superintendent or principal of a public school to suspend a

pupil "for not more than ten days . . ." (italics supplied); and requires notification to the parent or

guardian in writing within 24 hours of any suspension. [2] Section 3313.66 also provides authority for the expulsion of pupils, but requires a hearing

thereon by the school board upon request of a parent or guardian. The rights of pupils expelled

are not involved in this case, which concerns only the limited discretion of school authorities to

suspend for not more than 10 days. Expulsion, usually resulting at least in loss of a school year or

semester is an incomparably more serious matter than the brief suspension, traditionally used as

the principal sanction for enforcing routine discipline. The Ohio statute recognizes this distinction. [3] The Court speaks of "exclusion from the educational process for more than a trivial period . . .

," ante at 576, but its opinion makes clear that even one day's suspension invokes the

constitutional procedure mandated today. [4] The Court apparently reads into Ohio law by implication a qualification that suspensions may


be imposed only for "cause," thereby analogizing this case to the civil service laws considered in

Arnett v. Kennedy, 416 U.S. 134 (1974). To be sure, one may assume that pupils are not

suspended at the whim or caprice of the school official, and the statute does provide for notice of

the suspension with the "reasons therefor." But the same statute draws a sharp distinction

between suspension and the far more drastic sanction of expulsion. A hearing is required only for

the latter. To follow the Court's analysis, one must conclude that the legislature nevertheless

intended -- without saying so -- that suspension also is of such consequence that it may be

imposed only for causes which can be justified at a hearing. The unsoundness of reading this sort

of requirement into the statute is apparent from a comparison with Arnett. In that case, Congress

expressly provided that nonprobationary federal employees should be discharged only for "cause."

This requirement reflected congressional recognition of the seriousness of discharging such

employees. There simply is no analogy between termination of nonprobationary employment of a

civil service employee and the suspension of a public school pupil for not more than 10 days. Even

if the Court is correct in implying some concept of justifiable cause in the Ohio procedure, it could

hardly be stretched to the constitutional proportions found present in Arnett. [5] Indeed, the Court itself quotes from a portion of Mr. Justice Frankfurter's concurrence in Anti-

Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171 (1951), which explicitly refers to "a

person in jeopardy of serious loss." See ante at 580 (emphasis supplied).

Nor is the "de minimis" standard referred to by the Court relevant in this case. That standard was

first stated by Mr. Justice Harlan in a concurring opinion in Sniadach v. Family Finance Corp., 395

U.S. 337, 342 (1969), and then quoted in a footnote to the Court's opinion in Fuentes v. Shevin,

407 U.S. 67, 90 n. 21 (1972). Both Sniadach and Fuentes, however, involved resolution of

property disputes between two private parties claiming an interest in the same property. Neither

case pertained to an interest conferred by the State. [6] 2 App. 163-171 (testimony of Norval Goss, Director of Pupil Personnel). See opinion of the

three-judge court, 372 F.Supp. 1279, 1291 (SD Ohio 1973). [7] See also Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971), quoting the "grievous loss"

standard first articulated in Anti-Fascist Committee v. McGrath, supra. [8] In dissent on the First Amendment issue, Mr. Justice Harlan recognized the Court's basic

agreement on the limited role of the judiciary in overseeing school disciplinary decisions:

I am reluctant to believe that there is any disagreement between the majority and myself on the

proposition that school officials should be accorded the widest authority in maintaining discipline

and good order in their institutions.

393 U.S. at 526. [9] See generally S. Bailey, Disruption in Urban Secondary Schools (1970), which summarizes

some of the recent surveys on school disruption. A Syracuse University study; for example, found

that 85% of the schools responding reported some type of significant disruption in the years 1967-

1970. [10] An amicus brief filed by the Children's Defense Fund states that, at least 10% of the junior

and senior high school students in the States sampled were suspended one or more times in the

1972-1973 school year. The data on which this conclusion rests were obtained from an extensive


survey prepared by the Office for Civil Rights of the Department of Health, Education, and

Welfare. The Children's Defense Fund reviewed the suspension data for five States -- Arkansas,

Maryland, New Jersey, Ohio, and South Carolina.

Likewise, an amicus brief submitted by several school associations in Ohio indicates that the

number of suspensions is significant: in 1972-1973, 4,054 students out of a school enrollment of

81,007 were suspended in Cincinnati; 7,352 of 57,000 students were suspended in Akron; and

14,598 of 142,053 students were suspended in Cleveland. See also the Office of Civil Rights

Survey, supra, finding that approximately 20,000 students in New York City, 12,000 in Cleveland,

9,000 in Houston, and 9,000 in Memphis were suspended at least once during the 1972-1973

school year. Even these figures are probably somewhat conservative since some schools did not

reply to the survey. [11] See generally J. Dobson, Dare to Discipline (1970). [12] The role of the teacher in our society historically has been an honored and respected one,

rooted in the experience of decades that has left for most of us warm memories of our teachers,

especially those of the formative years of primary and secondary education. [13] In this regard, the relationship between a student and teacher is manifestly different from that

between a welfare administrator and a recipient (see Goldberg v. Kelly, 397 U.S. 254 (1970)), a

motor vehicle department and a driver (see Bell v. Burson, 402 U.S. 535 (1971)), a debtor and a

creditor (see Sniadach v. Family Finance Corp., supra; Fuentes v. Shevin, supra; Mitchell v. W. T.

Grant Co., 416 U.S. 600 (1974)), a parole officer and a parolee (see Morrissey v. Brewer, 408 U.S.

471 (1972)), or even an employer and an employee (see Arnett v. Kennedy, 416 U.S. 134 (1974)).

In many of these noneducation settings there is -- for purposes of this analysis -- a "faceless"

administrator dealing with an equally "faceless" recipient of some form of government benefit or

license; in others, such as the garnishment and repossession cases, there is a conflict of interest

relationship. Our public school system, however, is premised on the belief that teachers and pupils

should not be "faceless" to each other. Nor does the educational relationship present a typical

"conflict of interest." Rather, the relationship traditionally is marked by a coincidence of interests.

Yet the Court, relying on cases such as Sniadach and Fuentes, apparently views the classroom of

teenagers as comparable to the competitive and adversary environment of the adult, commercial

world. [14] A traditional factor in any due process analysis is "the protection implicit in the office of the

functionary whose conduct is challenged. . . ." Anti-Fascist Committee v. McGrath, 341 U.S. at 163

(Frankfurter, J., concurring). In the public school setting, there is a high degree of such protection,

since a teacher has responsibility for, and a commitment to, his pupils that is absent in other due

process contexts. [15] The Court itself recognizes that the requirements it imposes are, "if anything, less than a fair-

minded school principal would impose upon himself in order to avoid unfair suspensions." Ante at

583. [16] See Connelly v. University of Vermont, 244 F.Supp. 156 (Vt.1956). [17] See Kelley v. Metropolitan County Board of Education of Nashville, 293 F.Supp. 485 (MD

Tenn.1968).


[18] The psychological injuries so perceived were as follows:

1. The suspension is a blow to the student's self-esteem. 2. The student feels powerless and

helpless. 3. The student views school authorities and teachers with resentment, suspicion and

fear. 4. The student learns withdrawal as a mode of problem solving. 5. The student has little

perception of the reasons for the suspension. He does not know what offending acts he

committed. 6. The student is stigmatized by his teachers and school administrators as a deviant.

They expect the student to be a troublemaker in the future.

372 F.Supp. at 1292. [19] There is, no doubt, a school of modern psychological or psychiatric persuasion that maintains

that any discipline of the young is detrimental. Whatever one may think of the wisdom of this

unproved theory, it hardly affords dependable support for a constitutional decision. Moreover, even

the theory's proponents would concede that the magnitude of injury depends primarily upon the

individual child or teenager. A classroom reprimand by the teacher may be more traumatic to the

shy, timid introvert than expulsion would be to the aggressive, rebellious extrovert. In my view, we

tend to lose our sense of perspective and proportion in a case of this kind. For average, normal

children -- the vast majority -- suspension for a few days is simply not a detriment; it is a

commonplace occurrence, with some 105 of all students being suspended; it leaves no scars;

affects no reputations; indeed, it often may be viewed by the young as a badge of some distinction

and a welcome holiday. [20] This estimate was supplied by the National School Board Association, Washington, D.C. [21] See U.S. Office of Education, Elementary and Secondary Public School Statistics, 1972-1973.

[22] Some half dozen years ago, the Court extended First Amendment rights under limited

circumstances to public school pupils. Mr. Justice Black, dissenting, viewed the decision as

ushering in

an entirely new era in which the power to control pupils by the elected "officials of state supported

public schools" . . . is in ultimate effect transferred to the Supreme Court.

Tinker v. Des Moines School Dist., 393 U.S. 503, 515 (1969). There were some who thought Mr.

Justice Black was unduly concerned. But his prophecy is now being fulfilled. In the few years since

Tinker, there have been literally hundreds of cases by schoolchildren alleging violation of their

constitutional rights. This flood of litigation, between pupils and school authorities, was triggered

by a narrowly written First Amendment opinion which I could well have joined on its facts. One can

only speculate as to the extent to which public education will be disrupted by giving every

schoolchild the power to contest in court any decision made by his teacher which arguably

infringes the state-conferred right to education.

---------


Miss. Code Ann. § 37-11-29.

When a student is arrested for, and lawfully charged with, the commission of any

crime and convicted upon the charge for which he was arrested, or convicted of

any crime charged against him after his arrest and before trial, the office or law

enforcement department of which the arresting officer is a member, and the

justice court judge and any circuit judge or court before whom such student is

tried upon said charge or charges, shall make or cause to be made a report

thereof to the superintendent of the school district in which such student is

enrolled.

Said report shall be made within one week after the arrest of such student.

Miss. Code Ann. § 43-21-255.

Any law enforcement record involving children who have been taken into custody

for an act, which if committed by an adult would be considered a felony and/or

offenses involving possession or use of a dangerous weapon … may be released …

to appropriate school officials without a court order under 43-21-261. Law

enforcement records shall be released upon written request. School officials

receiving such records are prohibited from using the photographs and fingerprints

for any purpose other than for criminal law enforcement and juvenile law

enforcement. School officials receiving the records shall submit to the sender a

signed statement acknowledging his or her duty to maintain the confidentiality of

the records.

Miss. Code Ann. § 43-21-261.


AGO 000012033.

Mississippi Attorney General Opinions

1997.

AGO 000012033.

June 13, 1997

DOCN 000012033

DOCK 1997-0268

AUTH Anita Clinton

DATE 19970613

RQNM James Arden Barnett, Jr.

SUBJ Schools - Trustees Miscellaneous

SBCD 211

TEXT James Arden Barnett, Jr., Esquire

Mitchell, McNutt, Threadgill, Smith & Sams

105 South Front Street

Post Office Box 7120

Tupelo, Mississippi 38802-7120

Re: Discipline of Students for Non-School Related Violence

Dear Mr. Barnett:

Attorney General Mike Moore has received your letter of request and has assigned it to me for

research and reply. In your letter you pose the following question:

The Superintendent and Board of Trustees of the Tupelo Public School District request an opinion

on the authority of the school district to protect its students and staff from students who have

committed violent or threatening offenses away from school and school related functions. The

protection against potentially violent students would amount to discipline, since it most often would

be manifested as separation from normal classroom activities or assignment to an alternative

program. This request arises from two instances where a student attending Tupelo schools was

arrested for or convicted of a potentially violent crime, such as attempted armed robbery or assault

with a deadly weapon. However, the offenses did not occur on school property nor at school

functions.

In essence, this request asks for an interpretation of the legislative intent of Section 37-11-29(2) of

the Mississippi Code of 1972, as amended. This statute requires law enforcement officials and

judges to report arrests, convictions, guilty pleas, acquittals, dismissals and nolle prossed charges

relating to students enrolled in a particular school district to the superintendent of the district. The

clear implication of this statute is that the superintendent, having received a report of violent or

dangerous criminal offenses by a student of the school district, would be able to act upon the

information to protect faculty, staff and other students of the district. Otherwise, why would the

Mississippi legislature require the report to be given?

This ability of the school district to take some measures to protect students and staff seems to be


enhanced when section 37-11-29 is read in conjunction with Section 37-11-1, which provides that

a principal shall not place a pupil in class where the pupil's presence because of, among other

things, personal habits, would adversely affect or hinder the academic development of other

pupils. Accordingly, if the school district received a report that a student had been arrested or

indicted for assault with a deadly weapon, the student could be assigned to an alternative program

or court school until the matter was resolved. In this manner, the school district could protect its

students and faculty while still providing meaningful educational opportunities to an accused or

even convicted student. Such action would only be taken in situations where there is some

reasonable belief that the student could be dangerous, either because of a violent or dangerous

act, sexual battery, or the sale or distribution of controlled substances.

We have only found two Mississippi cases which in any way touch upon the discipline of students

for offenses committed away from school. Neither of these cases involve violent or dangerous

acts, and both were decided prior to the amendments to Section 37-11-29 which were enacted by

the Mississippi Legislature in 1994. The courts in other states have routinely found that school

authorities may take reasonable actions against violent offenders to protect students and staff,

even if the violent offenses occurred away from school. For your convenience, I have enclosed a

copy of our research.

The school district is currently considering changes to its disciplinary policies to include actions

responsive to the situations described in this letter. The opinion of the Attorney General

interpreting these statutes is an essential element and prerequisite to the revision of the policies,

which will make our schools a safer place. Thank you for your consideration in this matter, and

please do not hesitate to contact me if you have any questions, comments or suggestions.

Three legal issues are presented by your question: First, what authority, if any, exists for a school

district to discipline a student for conduct involving violence or the distribution of controlled

substances that occurs away from school or school related activities. Second, if authority exists,

what discipline may be imposed, and third, if discipline can be imposed what process is due.

Miss. Code Ann. Section 37-9-69 provides in part that "...superintendents, principals and teachers

shall hold the pupils to strict account for disorderly conduct at school, on the way to and from

school, on the playgrounds, and during recess." Mississippi Code Ann. Section 37-9-71 grants the

superintendent of a school district the authority to suspend or expel a student "for good cause or

for any reason for which such pupil might be suspended, dismissed or expelled by the school

board." Mississippi Code Ann. Section 37-7-301 provides at subsection (e) that a school board

has the power "to suspend or to expel a pupil for misconduct in the school, upon school buses, on

the road to and from school, during recess or upon the school playgrounds...." Miss Code Ann.

Section 37-11-18 is also place specific in that expulsion for possession of any controlled

substance, a weapon or commission of a violent act is limited to acts committed "on educational

property as defined in section 97-37-17." The latter code section defines educational property as

follows:

"Educational property" shall mean any public or private school building or bus, public or private

school campus, grounds, recreational area, athletic field, or other property owned, used or

operated by any local school board, school, college or university board of trustees, or directors for


the administration of any public or private educational institution or during a school related activity;

provided however, that the term "educational property" shall not include any sixteenth section

school land or lieu land on which is not located a school building, school campus, recreational

area or athletic field.

The Mississippi Supreme Court has acknowledged that a school board's disciplinary powers must

operate within limits. In Hobbs v Germany, 49 So. 515, 517 (Miss. 1909) the Supreme Court was

presented with an expulsion for violation of a school rule whereby students were required to stay

in their homes from 7:00 to 9:00 p.m. and study. Under the then prevalently applied common law

doctrine of in loco parentis, the Mississippi Supreme Court, interpreting the limits of a school

board's power, voided the rule holding that "when the schoolroom is entered by the pupil, the

authority of the parent ceases, and that of the teacher begins...When sent to his home, the

authority of the teacher ends, and that of the parent begins." Nevertheless, the Court allowed that,

It may be that the school authorities would have a right to make certain regulations and rules for

the good government of the school, which would extend and control the child even when it has

reached its home; but, if that power exists, it can only be done in matters which would per se have

a direct and pernicious effect on the moral tone of the school, or have a tendency to subvert and

destroy the proper administration of school affairs.

In more recent cases the court has refrained from ruling directly on the question of a school

board's authority to suspend or expel a student for off campus misconduct. In reversing an

expulsion on narrow procedural due process grounds in Warren County Board of Education v

Wilkinson, 500 So. 2d 455 (Miss. 1986), the court opined, "the school board has called our

attention to no rule expressly or impliedly prohibiting a student from drinking beer at home -

indeed, we doubt a school board would have authority to make such a rule, although the point is

not before us today." However, in Jones v Board of Trustees of the Pascagoula Municipal

Separate School District, 524 So. 2d 968 (Miss. 1988), upholding an expulsion of a student

distributing drugs in school, the court stated, "Whether in light of our opinion in Wilkinson, the

school board may discipline Regina based on proof that she distributed valium off campus is a

close question, but a question we do not have to reach since we find sufficient evidence to support

the allegation that Regina did violate the school drug policy at school." In the case T.H. v Board of

Trustees of the Pascagoula Municipal Separate School District, 681 So.2d 110 (Miss. 1996) the

court held that the school alcohol policy was constitutional as applied to a student who consumed

two beers off campus immediately prior to attending a school athletic event.

A review of the case law reveals that the Mississippi Supreme Court has not been presented with

and has not ruled on the specific question of a school district's authority to discipline students for

violent or dangerous conduct or drug sales committed outside of the school setting. A number of

other jurisdictions have addressed the question and concluded that school authorities may

suspend or expel pupils for out-of-school conduct having a direct and immediate effect on the

discipline or general welfare of the school. However, a careful review of these cases reveals that

these states had expulsion statutes with no explicit geographic restrictions. Closer to the wording

of Mississippi's statute is a Louisiana statute that specifies suspension is available for use and

possession of controlled substances and alcohol "in school buildings, on school grounds, or on


school buses." In Labrosse v St. Bernard Parish School Board, 483 So.2d 1253 (La. App. 4th Cir.

1986) the Louisiana Court of Appeal held that the principal's authority to expel students for

possession of alcohol or dangerous substances was limited by the statute to possession on school

grounds or in school buses.

It is, therefore, the conclusion of this office that a school district in Mississippi, due to the clear

geographic limitation imposed by statute, does not have the authority to suspend or expel a

student from school based upon violent acts or drug distribution or sales if such acts are

committed out-of-school.

That is not to say that a school district is without the ability to segregate students implicated in off-

campus criminal activities from the regular school community. However, as you point out such

"protection against potentially violent students would amount to discipline." The Legislature has

enacted a number of statutes that when read together clearly allow a school district to enact rules

to ensure the safe and orderly operation of the schools. Subsection (1) of Miss. Code Ann. Section

37-7-301 provides that a school board may "prescribe and enforce rules and regulations not

inconsistent with law or with the regulations of the State Board of Education ... for the government

of the schools..." Miss Code Ann. Section 37-11-1 provides as follows:

After a pupil has been assigned to a particular public school, the principal, or anyone else vested

with the authority of assigning pupils to classes, shall not place such pupil in a class where his

presence there, because of age differential, mental development, achievement level, or personal

habits, would serve to adversely affect, hinder, or retard the academic development of other pupils

in the class.

Pursuant to Miss. Code Ann. Section 37-11-29 law enforcement officials and judges are charged

with the duty to report to the school district superintendent the arrest of any student of that district

and the disposition of any charges brought against such a student. A failure to report pursuant to

37-11-29 is punishable as a misdemeanor under 37-11-35.

In 1994 the Legislature amended Miss. Code Ann. Section 43-21-621 which governs the youth

courts' authority to enroll or re-enroll a student as follows: " ...the youth court shall not order the

enrollment or re-enrollment of a student that has been suspended or expelled by a public school

pursuant to Section 37-9-71 or 37-7-301 for possession of a weapon on school grounds, for an

offense involving a threat to the safety of other persons or the commission of a violent act." In

addition, as to the youth courts' authority to enroll or re-enroll those students whose acts are

committed out-of-school (and thus are outside the authority of school officials to expel or

suspend),

If the adjudication of delinquency was for an offense involving a threat to the safety of the juvenile

or others and school attendance is a condition of probation, the youth court judge shall make a

finding that the principal of the juvenile's school should be notified. If the judge orders that the

principal be notified, the youth court counselor shall within five (5) days or before the juvenile

begins to attend school, whichever occurs first, notify the principal of the juvenile's school in

writing of the nature of the offense and the probation requirements related to school attendance.

Under 43-21-621 if, after notice and hearing has been provided to the school, a youth court orders

the enrollment or re-enrollment of any pupil, the superintendent is granted the express authority, in


the exercise of his discretion, to assign the pupil to an alternative school program.

By its terms, Miss. Code Ann. Section 37-13-92 does not limit the categories of students who may

be assigned to an alternative school program. In fact, in 1992 the statute was explicitly amended

to provide that the certain categories of students eligible for alternative school programs were not

exclusive:

Beginning with the school year 1993-1994, the school boards of all school districts shall establish,

maintain and operate, in connection with the regular programs of said school district, an alternative

school program for, but not limited to, the following categoriesof compulsory-school-age students:

[emphasis added]

(a) Any compulsory-school-age child who has been suspended or expelled from school, except for

anystudent expelled for possession of a weapon or other felonious conduct.

(b) Any compulsory-school-age child referred to such alternative school based upon a

documented need for placement in the alternative school program by the parent, legal guardian or

custodian of such child due to disciplinary problems.

(c) Any compulsory-school-age child referred to such alternative school program by the dispositive

order of a chancellor or youth court judge, with the consent of the superintendent of the child's

school district.

Read together all of these statutes clearly contemplate that when a school district receives notice

that a student has committed an act away from school that is of such a nature that to continue the

student in his or her regular education program would have an immediate, direct and disruptive

effect on the school environment, then the school officials may take disciplinary action and assign

the student to an alternative program, in school suspension or alternate site instruction so long as

such action does not constitute a suspension or expulsion from the school district.

The final question raised is what process is due if a school district elects to impose discipline in the

form of reassignment to an alternative school program without suspension or expulsion.

In Goss v Lopez, 419 U.S. 565, 42 L.Ed 2d 725, 95 S.Ct. 729 at 737 (1975) the Supreme Court

concluded that the length and consequent severity of a deprivation is a factor in determining the

appropriate form of hearing. While clearly establishing that any suspension is a deprivation of a

student's property right and requires a due process hearing, the court held that the nature of the

due process required when a suspension is for ten (10) days or less is informal, pre-suspension

notice and hearing in which the student is apprised of the charges against him and if he denies it,

given an explanation of the evidence the school has obtained and provided an opportunity to

present his side of the story. If the suspension passes the threshold of Goss v Lopez, then the

procedural safeguards rise accordingly, and prior to the imposition of a longer suspension or

expulsion, the student is entitled to a full hearing in accord with the procedures outlined at Warren

County Board of Education v Wilkinson, 500 So.2d 455 at 460-461 (Miss. 1986).

However, when there is no suspension or expulsion but an assignment to an alternative

educational setting and no state statute requires due process for an alternative school assignment,

no federal due process is required. Nevares v San Marcos Consolidated Independent Public

School District, 111 F. 3d 25 (5th Cir. (Tex.), 1997). The Fifth Circuit in Nevares reasoned that a

student who was assigned to an alternative school following an arrest for an off campus felony


offense was not denied access to public education, and thus, no federally protected property or

liberty interest was involved:

Timothy Nevares is not being denied access to public education, not even temporarily. He was

only to be transferred from one school program to another program with stricter discipline.

As mentioned above, Nevares' holding depended on the fact that no property or liberty interests

were conferred by the Texas statute under scrutiny. Prior to 1995 there was, likewise, no liberty or

property interest created under Mississippi school statutes. See MS AG OP., Lowery (Sept. 23,

1993).

The Mississippi Legislature, however, has seen fit to confer a property or liberty interest on

students who are assigned to alternative school for disciplinary reasons. The Mississippi

alternative school statute, Miss. Code Ann. Section 37-13-92, was amended in pertinent part in

1995 by Senate Bill No. 2510 as follows:

(7) The State Board of Education shall promulgate minimum guidelines for alternative school

programs... The minimum guidelines for alternative school programs shall also require the

following components:

(a) Clear guidelines and procedures for placement of students into alternative education programs

which at a minimum shall prescribe due process procedures for disciplinary ...placement.

[emphasis added]

Such a property or liberty interest conferred by state statute is fully enforceable in federal or state

court. The Mississippi Board of Education has promulgated guidelines under Section 37-13-92(7)

as follows:

The district has and follows written procedures which meet Goss v Lopez due process

requirements for removal of a student from school for disciplinary reasons.

This regulation interprets the statute so as to equate the due process required thereunder with the

mandates of Goss v Lopez. It does not differentiate between those assignments made pursuant to

an expulsion or suspension and any other disciplinary assignment.

The limited nature of the discipline (reassignment as opposed to suspension or expulsion) is not,

however, irrelevant to the process afforded the student. The reassignment hearing need not

adjudicate the guilt or innocence of the pupil for the alleged out-of-school conduct. At such a

hearing the school need only present evidence of the immediate and direct negative effect upon

the governance of the school created if the pupil is not reassigned to an alternative school. The

pupil must be allowed the opportunity to counter that evidence and present evidence of his own.

In summary it is the opinion of this office that, due to the clear geographic limitation imposed by

statute, there is no authority under the present law to suspend or expel a student for dangerous or

violent acts or the sale of controlled substances if such acts are committed away from the school

or school related activities. The school district may, however, discipline the student in other ways,

including assignment to an alternative school, if there is a showing that the non-school related

conduct of the child has a direct and negative effect upon the learning environment of the school

and/or constitutes a threat to the safety of the student or others. Mississippi statutory and

regulatory law, unlike that of other states, grants a property or liberty interest in the regular

education program; therefore any disciplinary assignment to an alternative school must be


accompanied by due process.

You may wish to seek legislative relief either on the issue of a school district's authority to expel or

suspend such students completely from the school or the property/liberty interest conferred by the

alternative school statute.

Yours truly,

MIKE MOORE,

ATTORNEY GENERAL

BY: Anita C. Clinton

Special Assistant Attorney General


10 So.3d 387 (Miss. 2008), 2006-CT-00326, Hinds County School Dist. Bd. of Trustees v. R.B. ex

rel. D.L.B.

Page 387

10 So.3d 387 (Miss. 2008)

HINDS COUNTY SCHOOL DISTRICT BOARD OF TRUSTEES

v.

R.B., A Minor by and through his next friend, D.L.B.

No. 2006-CT-00326-SCT.

Supreme Court of Mississippi.

December 11, 2008

Rehearing Denied March 5, 2009.

Page 388

[Copyrighted Material Omitted]

Page 389

T. Michael Cronin, James A. Keith, Jackson, attorneys for appellant.

Latrice Westbrooks, Jackson, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

CARLSON, Justice.

¶ 1. The Hinds County School District Board of Trustees (School Board) filed a

Page 390

petition for writ of certiorari pursuant to Mississippi Rule of Appellate Procedure 17 after the Court

of Appeals' issuance of a plurality opinion affirming the judgment of the Hinds County Chancery

Court to reverse and expunge the School Board's decision to expel R.B. from Byram Middle

School and the Main Street Alternative School. At the trial court level, the chancery court had ruled

that the School Board's removal of R.B. from Byram Middle School due to his possession of a

prohibited device and the School Board's subsequent decision to expel R.B. from the Alternative

School for drug possession were arbitrary and capricious and unsupported by substantial

evidence, resulting in substantial prejudice to R.B. The chancery court had further found that the

substantial prejudice caused by the School Board's procedures resulted in a denial of R.B.'s right

to due process. The chancery court had ordered that the School Board's disciplinary actions be

expunged from R.B.'s record. The School Board appealed, and the Court of Appeals, in a five-five

plurality opinion, affirmed the chancery court's judgment. Upon our grant of certiorari, the

American Civil Liberties Union and the American Civil Liberties Union of Mississippi (hereinafter

collectively the " ACLU" ) filed a Motion for Leave to File Brief of Amicus Curiae, which motion we

in due course granted; therefore, in addition to the briefs of the parties, we now have before us for

consideration, the ACLU's amicus brief which was filed pursuant to our order.[1] From the record

before us and the applicable law, we are constrained to reverse the judgments of the Court of

Appeals and the Chancery Court for the First Judicial District of Hinds County and to render

judgment here in favor of the Hinds County School District Board of Trustees.

PROCEEDINGS IN THE TRIAL COURT AND RELEVANT FACTS[2]


¶ 2. R.B., a minor, by and through his next friend, D.L.B., appealed the Hinds County School

District Board of Trustees' decision to expel R.B. from Byram Middle School and to place him at

the Alternative School for the remainder of the 2004 school year and for the first nine weeks of the

following 2004-2005 school year. The expulsion was a result of R.B. possessing what was

deemed by the principal, superintendent, and the School Board to be a knife-in violation of school

policy and Mississippi Code Annotated section 97-37-17(4).[3] The appeal to the Hinds County

Page 391

Chancery Court was subsequently amended to include R.B.'s May 2004 expulsion from the

Alternative School for possession of marijuana. The Chancery Court for the First Judicial District of

Hinds County, Chancellor Patricia D. Wise presiding, conducted a hearing in chancery court on

February 8, 2005, recessed that hearing, and then concluded the hearing on October 5, 2005. The

chancellor reversed the expulsions and ordered them expunged from R.B.'s record.

¶ 3. R.B. was a student at Byram Middle School. On February 5, 2004, R.B. was summoned

to the principal's office due to another student's report that R.B. was selling drugs on campus.

Principal Campbell obtained R.B.'s consent and searched his backpack. This search resulted in

the discovery of contraband, namely an instrument that has been described as both a nail file and

a knife. R.B.'s father, D.L.B., was notified. Principal Campbell requested that D.L.B. assist in an

additional, more invasive search that would involve the removal of R.B.'s clothing.[4] D.L.B.

refused this request. R.B. was subsequently arrested and taken to the detention center, where he

was released into D.L.B's custody.[5] As a result of this incident, Principal Campbell

recommended that R.B. be expelled from Byram Middle School for one calendar year. The Hinds

County School District Admission Appeals Committee [6] held a hearing on February 17, 2004, at

which R.B. was allowed to argue on his own behalf. R.B., by and through his next friend, D.L.B.,

responded to the allegations. The Appeals Committee also read statements from Principal

Campbell and the school resource officer, and also viewed a photocopy of the instrument at issue.

The Appeals Committee voted to expel R.B. for the remainder of the year and to put him on

probation for the next school year. D.L.B. appealed this decision to the Hinds County School

District Board of Trustees (the " School Board" ).

¶ 4. On March 10, 2004, the School Board reviewed the Appeals Committee's decision.

D.L.B. gave a statement to the School Board, citing the School Safety Law and Policy

Development Handbook in defense of his position that the instrument was an unaltered nail file,

not a weapon. For reasons unknown, the actual instrument at issue was not available for

examination by the School Board. D.L.B., according to his testimony, presented School Board

members with an instrument that he described as identical to the one confiscated from R.B. The

School Board assigned the superintendent the task of determining whether the device was a

weapon. On March 12, 2004, based on a photocopied depiction of the instrument, the

superintendent determined the instrument in question to be a knife in violation of school policy and

Mississippi Code Annotated Section 97-37-17(4) (Rev.2006). Based on this determination, the

School Board upheld the Appeals Committee's

Page 392

decision, and R.B. was placed at the Alternative School.


¶ 5. On May 19, 2004, while at the Alternative School, R.B. was accused of possession of

marijuana. The marijuana was found in a classroom on a bookshelf near R.B. by an investigative

officer. R.B. signed a written statement indicating that another student, J.D., had tossed the

marijuana at him and that he had thrown it onto the bookshelf. Two students, including J.D.,

signed statements that the drugs belonged to R.B., and D.L.B. was again notified and summoned

to the school. The Alternative School principal, Bob Mohr, recommended a one-year expulsion.

D.L.B. appealed the expulsion to the Appeals Committee. R.B received written notice of the

Appeals Committee hearing. This notice stated that R.B. and D.L.B. had the right to protest the

expulsion and the hearing, and the notice further stated:

(1) A full statement of the charges lodged against the student is as follows: admitting to

possession of a controlled substance and attempting to conceal and sell it; (2) The names of all

persons who are expected to offer statements against the student: Mr. Sheridan Stewart, Mr. Bob

Mohr, Mr. Kelvin Mixon.

¶ 6. The notice also provided " [e]ach of you shall also have the right:"

(1) To have counsel present at the hearing; (2) To cross-examine or otherwise pose questions to

persons giving statements adverse to the student: To offer statements by the student and

parent(s) or guardian and any other person who has information relevant to the charges advanced

by the Administrative head of the Main Street Alternative School.

¶ 7. At this hearing, R.B. spoke on his own behalf. The Appeals Committee also considered

five signed statements by students indicating that R.B had been in possession of marijuana. In the

end, the Appeals Committee accepted Mohr's recommendation for expulsion.

¶ 8. The School Board met on June 10, 2004, and, after reviewing the evidence considered

by the Appeals Committee, affirmed R.B.'s expulsion. D.L.B. later testified at the chancery court

hearing that he did not give a statement at this School Board meeting due to not having received

notice of the hearing. Instead, according to D.L.B., he received a letter from the School Board after

the meeting, informing him that the expulsion for one calendar year had been affirmed.[7] D.L.B.

appealed both School Board decisions as to the two separate disciplinary actions, and the

chancery court reversed the School Board's decisions concerning both disciplinary actions and

ordered that these disciplinary actions be expunged from R.B.'s school records.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 9. The School Board appealed the chancery court's decision to reverse R.B.'s expulsion

and to expunge his disciplinary record. The School Board presented the following questions to the

Court of Appeals for review:

(1) Was the decision of the Hinds County School District (the " District" ) Board of Trustees to

expel R.B. from Byram Middle School for the remainder of the school year for possession of a

knife or

Page 393

dangerous implement on school grounds unsupported by substantial evidence, arbitrary and

capricious, or in violation of the statutory or constitutional rights of R.B.?(2) Was the decision of

the Board to expel R.B. from the District for one calendar year for possession of marijuana

unsupported by substantial evidence, arbitrary and capricious, or in violation of the statutory or


constitutional rights of R.B.?

The Court of Appeals, in a five-five plurality opinion, affirmed the chancery court's decision.

Hinds County Sch. Dist. v. R.B., 10 So.3d 495, 497, 2007 WL 2702819 (Miss.Ct.App.2007).

¶ 10. As to R.B.'s Alternative School placement for possession of a weapon, the Court of

Appeals affirmed the chancellor's decision to reverse based on its conclusion that the School

Board's decision was unsupported by substantial evidence, and, therefore, arbitrary and

capricious. Id. at 502, ¶ 27. The plurality interpreted Mississippi Code Annotated Section 37-7-

301(e) (Rev.2007) to require the School Board to view the knife and make its own factual findings

instead of delegating such authority to the superintendent. Id. at 501-02, ¶ ¶ 24-25. Additionally,

the Court of Appeals noted that a cursory inspection of the instrument in question would have

revealed that it was an unaltered nail file, as described by D.L.B., and not in violation of Hinds

County policy. Id. at 502, ¶ 27. The plurality opinion stated:

The Court has had the opportunity to examine the device as part of its review of the record.

Having viewed the device, it is clear that the School Board's decision to render a final decision

without viewing the device was arbitrary and capricious. Had the School Board examined the

device, it would have been able to determine that the device was not a " pocket knife," as stated

by the school's security officer.

Id. at 502, ¶ 27.

¶ 11. As to the possession-of-marijuana charge, the plurality affirmed the chancellor's

decision to reverse, finding that R.B.'s right to due process had been violated at both the Appeals

Committee and School Board levels. Id. at 503, ¶ 31. The plurality opinion relied on Warren

County Board of Education v. Wilkinson, 500 So.2d 455 (Miss.1986), in determining that R.B. had

been deprived of the additional due process guarantees, namely the right to confront witnesses

and the right to cross-examine witnesses, as provided for in the notice he received regarding the

Appeals Committee hearing. Id. at 503, ¶ 32. Concerning the issue of lack of opportunity for R.B.

to confront his accusers, the plurality stated:

The Appeals Committee received evidence in the form of written statements from the other

students involved in the incident who placed the blame on R.B. Not only was R.B. not allowed to

pose questions to these students, who were not present at the hearing, the Appeals Committee

advised D.L.B. that R.B. had no right to even know the names of those students who accused him.

Accordingly, regardless of whether R.B. received the minimal due process to which he was

entitled as a matter of course, he was deprived of the additional due process protections which the

Appeals Committee guaranteed him. See Warren County Bd. of Educ. v. Wilkinson, 500 So.2d

455 (Miss.1986) (holding that where a school board guaranteed a student the opportunity to cross-

examine the witnesses against her, failure to provide witnesses constituted a deprivation of

procedural due process).

Id.

¶ 12. In reliance on Jones v. Board of Trustees, 524 So.2d 968 (Miss.1988), the

Page 394

plurality determined that the School Board had deprived R.B. of notice and the opportunity to

speak on his own behalf when the school district failed to notify R.B. of the June 10, 2004, school


board meeting, at which the final decision to expel was made. Thus, according to the plurality

opinion, the School Board had deprived R.B. of the requisite minimal due process. Id. at 503, ¶ 33.

¶ 13. In addressing both of these issues, the Court of Appeals dissenting opinion refused to

find that the School Board's decisions were unsupported by substantial evidence or resulted in

substantial prejudice to R.B. Judge Roberts's dissent, which was joined by four other judges,

noted that, due to the School Board's decision being an administrative decision, the chancellor

should have conducted a limited review of the decision based solely on the record, but instead, the

chancellor wrongly admitted additional evidence and exhibits. Id. at 505, ¶ 44. The dissent

interpreted Mississippi Code Annotated Section 37-7-301(e) as authorizing school boards to

delegate disciplinary matters to school administrators so long as school boards made the final

determination as to the issue of expulsion. Id. at 508, ¶ 58. Additionally, the dissent agreed with

the School Board's argument that there was no case law on point requiring a school board to

examine the actual " weapon." Id. at 509, ¶ 63.

¶ 14. As to the marijuana-possession allegation, the dissent pointed to R.B.'s " quasi

confession" that he had possessed of the marijuana " if only for a brief time." Id. at 511, ¶ 71. The

dissent rejected the plurality's findings of a due process violation based on R.B.'s notice and

opportunity to appear at the Appeals Committee hearing. Id. at 511-12, ¶ 72. The dissent

dismissed the plurality's contention that R.B. was entitled to cross-examine the student witnesses

based on the following reasoning:

[T]he School Board does not have the power to compel student attendance at a hearing. Jones,

524 So.2d at 973. See also Miss.Code Ann. § 37-7-301. If the School Board does not have

subpoena power then there can be no right to compulsory process for the witness and hence no

right of confrontation. Absent subpoena power, it is clearly reasonable for the Appeals Committee

to rely on written reports and written statements from witnesses.

Id. at 513, ¶ 78.

¶ 15. We now consider these issues presented via the School Board's petition for writ of

certiorari.

DISCUSSION

¶ 16. We begin the discussion by stating that we agree with Judge Roberts's dissent in that

an appellate review of this administrative decision should not have gone beyond the record. Id. at

505, ¶ 44 (citing Miss. State Tax Comm'n v. Miss.-Ala. State Fair, 222 So.2d 664, 665

(Miss.1969)). However, because neither party objected to additional fact-finding by the chancellor,

this Court must consider the additional evidence as part of the record pursuant to Mississippi Rule

of Appellate Procedure 17(h).

¶ 17. An appellate review of an agency decision is a limited inquiry. " When this Court

reviews a decision by a chancery or circuit court concerning an agency action, it applies the same

standard of review that the lower courts are bound to follow." Miss. Sierra Club, Inc. v. Miss. Dep't

of Envtl. Quality, 819 So.2d 515, 519 (Miss.2002) (citing Miss. Comm'n on Envtl. Quality v.

Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1216 (Miss.1993)). This Court reviews an

administrative agency decision to determine

Page 395


whether the decision (1) was unsupported by substantial evidence, (2) was arbitrary or capricious,

(3) was beyond the power of the administrative agency to make, or (4) violated some statutory or

constitutional right of the complaining party. Id. (citing Miss. Comm'n on Envtl. Quality, 621 So.2d

at 1215). Where there is substantial evidence, " an agency's fact finding must be allowed to stand ‘

even though there might be room for disagreement on that issue’ ." Miss. Public Service Comm'n

v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992) (quoting Babcock & Wilcox v.

Roby, 246 Miss. 160, 150 So.2d 129, 130 (1963)). Furthermore, " [m]atters of law will be reviewed

de novo, KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991), with great deference afforded an

administrative agency's ‘ construction of its own rules and regulations and the statutes under

which it operates'." McDerment v. Miss. Real Estate Comm'n, 748 So.2d 114, 118 (Miss.1999)

(quoting Miss. State Tax Comm'n v. Mask, 667 So.2d 1313, 1314 (Miss.1995)).

¶ 18. The School Board asserts four points of error by the plurality of the Court of Appeals [8]

for our review: (1) the standard of review applied by the Court of Appeals was contrary to the law;

(2) the plurality's decision conflicts with prior precedent governing due process in public school

disciplinary matters; (3) the plurality erroneously applied and ignored the plain language of

Mississippi Code Annotated Section 37-7-301(e); and (4) the plurality erroneously required the

physical examination of the " weapon" where no law requires the physical examination of

dangerous and/or potentially illegal devices prior to administering student discipline. In the course

of our discussion, we will address Issues (3) and (4) together, as they both involve the authority of

school boards to delegate disciplinary matters.

I. WHETHER THE PLURALITY IMPROPERLY SUBSTITUTED ITS JUDGMENT FOR THAT OF

THE DISTRICT IN DETERMINING THAT THE BOARD'S DECISION WAS ARBITRARY AND

CAPRICIOUS, AND UNSUPPORTED BY SUBSTANTIAL EVIDENCE.

¶ 19. The School Board contends that the Court of Appeals plurality improperly substituted

its judgment for that of the School Board by making a factual finding regarding the nature of the

object seized from R.B. In doing so, the School Board argues that the Court of Appeals' affirmance

of the chancellor's ruling went beyond the arbitrary-and-capricious review standard.

¶ 20. A decision cannot be arbitrary and capricious where there is substantial evidence to

support its factual basis. See Miss. Dep't of Human Servs. v. McNeel, 869 So.2d 1013

(Miss.2004). This Court has defined substantial evidence as follows:

Substantial evidence, though not easily defined, means something more than a " mere scintilla" of

evidence, Johnson v. Ferguson, 435 So.2d 1191 (Miss.1983), and that it does not rise to the level

of " a preponderance of the evidence." Babcock & Wilcox Co. v. McClain, 149 So.2d 523

(Miss.1963). It may be said that it " means such relevant evidence as reasonable minds might

accept as adequate to support a conclusion. Substantial evidence means evidence which is

Page 396

substantial, that is, affording a substantial basis of fact from which the fact in issue can be

reasonably inferred." State Oil & Gas Bd. v. Mississippi Min. & Roy. Own. Ass'n, 258 So.2d 767

(Miss.1971); United States v. Harper, 450 F.2d 1032 (5th Cir.1971).

McNeel, 869 So.2d at 1018 (quoting Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991)).

The arbitrary-and-capricious standard has been defined by this Court to mean:


When an administrative agency's decision is not based on substantial evidence, it necessarily

follows that the decision is arbitrary and capricious [,] and an administrative agency's decision is

arbitrary when it is not done according to reason and judgment, but depending on the will alone.

An action is capricious if done without reason, in a whimsical manner, implying either a lack of

understanding of or disregard for the surrounding facts and settled controlling principles.

McNeel, 869 So.2d at 1018 (quoting Miss. State Dep't of Health v. Natchez, 743 So.2d 973, 977

(Miss.1999); see also Burks v. Amite County Sch. Dist., 708 So.2d 1366, 1370 (Miss.1998)).

¶ 21. The Court of Appeals plurality took issue with the scale of the photocopy and the fact

that the superintendent and the school board viewed a photocopy of the instrument and not the

actual instrument which had been seized. The Court of Appeals judges who comprised the

plurality viewed the actual instrument and determined that the device was not a knife, but an

unaltered nail file, as described by D.L.B. However, from the record and the applicable law, it is

obvious that the plurality, contrary to the factual findings of the School Board, substituted its own

judgment for that of the School Board. This Court respectfully disagrees with the plurality's findings

as to the seized weapon. The record reveals that there exists a reasonable basis to conclude that

the object in question was a knife, as categorized by Principal Campbell and the school resource

officer present at the time the instrument was confiscated.

¶ 22. The School Board, in reaching its decision that the seized object was a knife, relied

upon the Appeals Committee's recommendation; the descriptions of the object by the principal,

school resource officer, and superintendent; a photocopy of the object; D.L.B.'s oral arguments

and written statement on behalf of R.B.; and the instrument that D.L.B. presented to the School

Board during the hearing and described as identical to the one confiscated from R.B. From the

record, it is clear that the School Board's decision was based on substantial evidence. Since this

case involves a review of an administrative agency's finding, where there is substantial evidence a

factual finding should stand " even though there might be room for disagreement on that issue."

Merchants Truck Line, Inc., 598 So.2d. at 782 (quoting Babcock & Wilcox, 150 So.2d at 130).

¶ 23. The dissent takes issue with the fact that the photocopy of the device depicted only

one prong. Dissent at ¶ 52. As Judge Roberts stated in his dissent for the Court of Appeals, the "

obvious and reasonable explanation" for this was that " the photocopied component was the only

component alleged to be a knife." Hinds Co. Sch. Dist. v. R.B., 10 So.3d 495, 509

(Miss.Ct.App.2007). The dissent further pointed to testimony by D.L.B. that this device was " part

of a manicure set" belonging to the child's mother. Dissent at ¶ 46. However, the dissent ignored

R.B.'s testimony wherein he admitted that he considered this device a " knife" -describing it as his

" slicer" that he used for

Page 397

cutting boxes. As Judge Roberts pointed out the in Court of Appeals dissent, there are three

prongs on the instrument-two of which are clearly a can opener and a nail file; however, " [t]he fact

that the implement contains a nail file does not exempt it from being a weapon if it has other

dangerous components." R.B., 10 So.3d at 509.

¶ 24. While a cursory inspection of the knife component may indeed reveal that the "

weapon" does not appear menacing, the role of this Court is limited to determining whether there


exists a reasonable basis for school officials to find that it could potentially cause harm to other

students. The dissent would have us ignore our role and substitute the judgment of this Court for

that of the School Board; however, where a reasonable factual basis for the charge exists, the

School Board was within its discretion to strictly apply and construe its own policies as to what

constituted a weapon and what punishment was appropriate. As this Court has stated, " While it is

true that there are many punishments that would seem less harsh or more appropriate in this

case, we must recognize that the law commits this entire matter to the discretion of the school

board." Covington County Sch. Dist. v. G.W., 767 So.2d 187, 192 (Miss.2000) (quoting Clinton

Mun. Separate Sch. Dist. v. Byrd, 477 So.2d 237, 242 (Miss.1985)).

¶ 25. For the reasons stated, we respectfully disagree with the findings of both the Court of

Appeals and the Hinds County Chancery Court that the instrument in question was a nail file.

These findings ignored the findings of the School Board and the school administrators that the

instrument was a " weapon." The School Board understandably argues before us that if the Court

of Appeals decision is allowed to stand, " school boards will be left with little, if any, confidence

that its discretionary decisions are not subject to reversal merely because a trial court and/or

appellate court disagrees. Such a ruling will have a chilling effect on school boards as well as

unnecessarily increase the amount of litigation regarding their decisions."

¶ 26. We find that the School Board's determination that R.B. was in possession of a

weapon in violation of school policy and Mississippi Code Annotated Section 97-37-17(4) is

supported by substantial evidence; therefore, we find that the School Board's disciplinary action in

this matter was not arbitrary or capricious and thus is beyond our authority to disturb because of

our limited scope of review in administrative matters.

II. WHETHER THE COURT OF APPEALS DECISION CONFLICTED WITH PRIOR PRECEDENT

GOVERNING DUE PROCESS IN PUBLIC SCHOOL STUDENT DISCIPLINARY MATTERS.

¶ 27. At issue here is the due process that should be afforded to public school students

involved in disciplinary matters. The School Board contends that R.B. received all process due

under the law; and, alternatively, even if he were deprived of due process, R.B. suffered no

substantial prejudice as a result. The School Board further contends in its petition for writ of

certiorari that the Court of Appeals' affirmation of the chancery court's ruling creates a heightened

standard for due process that is not required under either the United States Constitution or the

Mississippi Constitution, and does not conform with prior precedent regarding student disciplinary

matters. R.B. argues that the lack of notice and opportunity to participate in the June 10, 2004,

School Board hearing, as well as his not being provided with a list

Page 398

of witnesses for the purpose of cross-examination, deprived him of due process and resulted in

substantial prejudice to his defense.

¶ 28. The United States Supreme Court, in Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729,

740, 42 L.Ed.2d 725 (1975), set forth the minimum due process requirement for students facing a

short-term suspension as follows: " Students facing temporary suspension have interests

qualifying for protection of the Due Process Clause, and due process requires, in connection with

a suspension of 10 days or less, that the student be given oral or written notice of the charges


against him and, if he denies them, an explanation of the evidence the authorities have and an

opportunity to present his side of the story." The Court further noted that longer suspensions or

expulsions may require more formal procedures. Id. at 584, 95 S.Ct. 729. The Fifth Circuit Court of

Appeals, in a case involving the long-term suspension of a student, acknowledged that: " The

standards of procedural due process are not wooden absolutes. The sufficiency of procedures

employed in any particular situation must be judged in the light of the parties, the subject matter

and the circumstances involved." Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1081 (5th

Cir.1984) (quoting Ferguson v. Thomas, 430 F.2d 852, 856 (5th Cir.1970)). This Court, in Jones v.

Board of Trustees, 524 So.2d 968, 972 (Miss.1988), required a showing of " substantial prejudice"

in order to prove a denial of due process.

¶ 29. Consistent with the United States Supreme Court's decision in Goss, this Court, in

Jones, 524 So.2d at 972, stated that notice and opportunity to be heard are minimal requirements

of the Due Process Clause. In Jones, a student was accused of drug distribution on campus. Id. at

969. The accused student, having cross-examined two student witnesses, argued that her due

process rights were violated by the school board because she was not provided a list of her other

accusers or the right to cross-examine those accusers. Id. at 973. This Court found that no

deprivation of procedural due process occurred. Id. As to providing an accused with a witness list,

this Court explicitly stated, " Since how much process is due depends on the particular

circumstances, a denial of a list of witnesses will not always amount to a prejudicial denial of due

process. Particularly, this must be so with student witnesses, since a school board has not been

given the power of subpoena." Id. The Court found that there was no deprivation of Jones's

confrontation rights when testimony by school administrators alluded to other students who had

made incriminating statements against Jones. Id. at 972-973. Furthermore, the Court noted that

precedent has revealed that hearsay testimony by school employees is treated differently from

that of students, and that admitting hearsay testimony by school employees does not violate a

student's right to due process. Id. at 973.

¶ 30. First, R.B. contends that his due process rights were violated because he lacked

notice of the June 10, 2004, School Board meeting and was not given an opportunity to speak on

his own behalf at this meeting. However, R.B. was given an opportunity to speak on his own

behalf to the Appeals Committee. We agree with the School Board that R.B. was afforded the

requisite notice and opportunity to speak on his own behalf at the Appeals Committee level of

review. Although we acknowledge that Jones, in keeping with United States Supreme Court's

holding in Goss, requires both notice and the opportunity to be heard, we find no precedent

indicating that R.B. was entitled to two full evidentiary hearings. There is nothing in

Page 399

the record to suggest that the School Board's policies and procedures allowed students more than

one hearing. Therefore, R.B. is unable to meet the requisite showing of substantial prejudice

where he was granted notice and an opportunity to speak on his own behalf at the Appeals

Committee level. This Court, in turn, finds this argument to be without merit.

¶ 31. Secondly, R.B. contends Jones held that due process routinely warrants cross-

examination of witnesses, and, at a minimum, receipt of a witness list. In support of this argument,


the ACLU in its amicus brief contends that an opportunity for cross-examination should be

afforded after weighing all the factors for determining the specific dictates of due process as

promulgated by the United States Supreme Court in Mathews v. Eldridge:

First, the private interest that will be affected by the official action; second, the risk of an erroneous

deprivation of such interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and finally, the Government's interest, including the

function involved and the fiscal and administrative burdens that the additional or substitute

procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The ACLU maintains

that the private interest affected, the right to a public education, is a fundamental right under the

Mississippi Constitution, [9] and as such, weighs heavily in favor of R.B. not being excluded from

the educational system without heightened due process.

¶ 32. The School Board, as well as the Court of Appeals dissent, argue that Jones does not

require school boards to produce student witnesses for the purpose of cross-examination, given

the fact that school boards do not have subpoena power. The plurality of the Court of Appeals

opined that the School Board's notice-of-hearing letter by which R.B. was told that he would have

the opportunity to cross-examine witnesses at the Appeals Committee hearing entitled him to

cross-examine all witnesses; as such, the School Board's failure to produce these witnesses

constituted a violation of R.B.'s right to procedural due process. The plurality relied on Warren

County Board of Education v. Wilkinson, 500 So.2d 455 (Miss.1986), in reaching the conclusion

that where a school district's own policy has created a right to more than a minimal amount of

process, failure by the school district to provide such additional procedures results in a due

process violation. We do not disagree with this premise, but it is inapplicable to today's case.

¶ 33. Wilkinson involved a student who was allotted the maximum punishment-loss of credit

for the entire semester-for consuming alcohol in her own home prior to attending school.

Wilkinson, 500 So.2d at 456. In Wilkinson, the Warren County School District previously had

adopted procedures for disciplinary matters that included a de novo hearing before the school

board, to which an accused student was entitled to notice, as well as an explanation of charges

and penalties, the right to confront and cross-examine witnesses, the right to call witnesses, the

right to counsel, and the right to request in writing the names of any witnesses testifying against

the student. Id. at 460-61. This Court upheld the chancery court's reversal of the expulsion on the

basis that the

Page 400

school district did not follow its own procedures, and the de novo hearing conducted by the school

board " became no more than an inquiry and discussion." Id. at 461. This Court distinguished

Wilkinson in Jones. " In Wilkinson this Court intimated that a list of witnesses was necessary;

however, there the school board's own rules required that a witness list be given." Jones, 524

So.2d at 973.

¶ 34. Concerning the marijuana allegation, R.B. did receive a list of potential witnesses in

his notice of the Appeals Committee hearing. The letter reads as follows:

The names of all persons who are expected to offer statements against the student: Mr. Sheridan


Stewart, Mr. Bob Mohr, Mr. Kelvin Mixon.

As noted in Jones, hearsay testimony by school administrators does not violate due process.

The Appeals Committee's review of hearsay statements given by Stewart, Mohr, or Mixon was not

improper. Furthermore, we do not interpret the holding of Jones as requiring school boards in

every case to compel attendance of student witnesses at disciplinary hearings for cross-

examination, or even requiring full disclosure of those students providing school officials with

information.

¶ 35. This Court acknowledged in Jones that the requisite amount of due process requires a

case-by-case inquiry. A list of student witnesses and opportunity for cross-examination may be

appropriate in some circumstances, such as in cases where school districts have explicitly

provided for this right in their policies and handbooks. Unlike the plurality for the Court of Appeals,

we do not equate the wording of the notice letter with pre-established school district policy as was

the case in Wilkinson. To be precise, in Wilkinson, the school board adopted a procedure for a de

novo hearing before the school board, and further provided that a student would be informed in

writing of the charges against him, " the possible penalties therefor, that he will have the right to

confront and cross-examine witnesses against him, his right to call witnesses in his own behalf, his

right to be represented by counsel, and advise him that he may request in writing the names of the

witnesses that may testify against him." Wilkinson, 500 So.2d at 460-61. On the other hand, the

wording of the notice in today's case is considerably different from the wording of the notice in

Wilkinson that was based on the school board's adopted policy. Id. In fact, R.B. and D.L.B. were

informed by Principal Mohr that school policy prevented the district from disclosing the students'

identities to protect against retaliation. Nothing in the record in today's case indicates that the

School Board had a policy providing for the right of cross-examination of all witnesses or

disclosure of the students who provided statements to school officials. The dissent cites the

current Hinds County School District Handbook as evidence that cross examination of witnesses

in disciplinary procedures is School Board policy. Dissent at ¶ 57. The handbook cited by the

dissent is that of the current school year, not the handbook from 2004 when this incident occurred.

Moreover, this Court is limited to the briefs that were before the Court of Appeals and the record,

and any portion of the Hinds County School District Handbook not previously cited therein cannot

be reviewed by this Court. See Miss. R.App. P. 17(h). The dissent cites policy that falls outside the

record; therefore, this Court will not consider the current Hinds County Handbook.

¶ 36. Furthermore, in the case of a drug offense, all school districts have a substantial

interest in maintaining a safe, drug-free environment for their students.

Page 401

To do so, it is important for schools to have the discretion to protect the identity of students who

report drug crimes occurring on their campuses. We agree with the School Board that to hold

otherwise would potentially endanger students by subjecting them to possible retaliation.

Additionally, requiring school districts to identify students who report drug crimes on school

campuses has the potential to create a chilling effect on how forthcoming students are with

administrators for fear of being identified by those students possessing and distributing drugs at

school. In its amicus brief, the ACLU argues that the third Mathews element, the School Board's


interest in protecting R.B.'s classmates from being identified or retaliated against, did not outweigh

R.B.'s interest given that the record did not show R.B. to be a threat. Mathews, 424 U.S. at 335,

96 S.Ct. 893. However, a drug crime on campus is an egregious offense and is, in and of itself, a

threat to the other students. Moreover, based on R.B.'s extensive discipline record and the

previous charge of possession of a weapon, we do not find this argument persuasive.

¶ 37. Citing inconsistencies in the statements of R.B.'s classmates, the ACLU argues that

the second Mathews factor, the risk of making an erroneous disciplinary decision, is significant

enough to compel cross-examination in this case. Id. We do not find this argument persuasive

given that the Appeals Committee had access to these statements, to R.B.'s statements made on

his own behalf, and to the statements of the school administrators. Thus, as fact-finders, the

Appeals Committee had ample opportunity to examine any inconsistencies and to assign the

appropriate weight and credibility to those statements. We also agree with the Court of Appeals

dissent that school boards do not have the statutory authority to compel students to testify against

fellow students at evidentiary hearings. In addition, this is not a case in which the school district

denied R.B. the right to call his own witnesses to speak in his defense. As stated in the Appeals

Committee notice letter, if R.B. had at any time deemed there were students with information

relevant to his defense, he could have produced those students for the purpose of giving a

statement to the Appeals Committee.

¶ 38. As to the drug-possession charge, we find the procedures implemented by the School

Board to be sufficient where R.B. (1) was apprised of the nature of the charges; (2) was given a

list of potential witnesses; (3) was informed of his right to counsel; and (4) was given notice and

opportunity to speak on his own behalf and to call any others with relevant information. In fact, as

noted by Judge Roberts in his dissent,

Neither R.B. nor anyone on his behalf ever attempted to cross-examine any school employee

witness who was present. Moreover, when asked, R.B. stated that he had no additional evidence

or witnesses to present to the Appeals Committee. The Appeals Committee and the School Board

considered a written report of the confiscation by two school employees, statements from

students, and R.B.'s quasi confession. The marijuana was found right where R.B. said he laid it.

Even if we assume that R.B. only hid the marijuana for another student, there was a significant

amount of evidence that R.B. had dominion and control over marijuana in his possession. Finally,

a chemical test revealed that it was, in fact, marijuana that was found.

Hinds Co. Sch. Dist. v. R.B., 10 So.3d 495, 513, ¶ 79, 2007 WL 2702819 (Miss.Ct.App.2007)

(emphasis in original). From the record, R.B. unquestionably was afforded due process. However,

even assuming arguendo

Page 402

that R.B. was denied due process, he has failed to make a showing of substantial prejudice. R.B.

gave a signed, written statement to Principal Mohr that, upon being alerted to the presence of

police on campus, another student, J.D., threw him the bag of marijuana and asked him to hide it.

In this statement, R.B. admitted to complying with this request when he tossed the bag onto a

nearby bookshelf. R.B. did not refuse the marijuana, nor did he alert his teacher or the police to

the presence of the marijuana. It is only when R.B. was questioned as a suspect in connection


with the marijuana that R.B. implicated J.D. As noted by Judge Roberts in his dissent, even if the

facts as stated by R.B. are accepted at face value, R.B. admitted to a brief possession and

subsequent concealment of the bag of marijuana. Id. at 513, ¶ 79. This admission weighs heavily

in favor of guilt and against the likelihood that R.B. could have suffered substantial prejudice as a

result of the School Board's disciplinary procedures.

¶ 39. In light of all the surrounding circumstances-the nature and severity of drug possession

on campus, the number of students who implicated R.B., and R.B.'s own incriminating, signed

statement-any school administrator sitting as a fact-finder could reasonably conclude that R.B.

was guilty of the drug-possession offense. Although we recognize that this case involves a

fundamental right to public education, after applying the Mathews factors, we cannot find any

efficacy in added procedures, especially considering the sufficiency of the evidence and the

School Board's overwhelming interest in ensuring the safety of its students. Mathews, 424 U.S. at

335, 96 S.Ct. 893. Therefore, even though we have found that R.B. was not denied due process,

in addressing the alternative argument that, assuming arguendo that R.B. was denied due

process, R.B. has failed to make a requisite showing that he was substantially prejudiced by not

being given a second evidentiary hearing at the June 10, 2004, School Board meeting, or by not

being provided a list of student witnesses or the opportunity to cross-examine his fellow students

at the Appeals Committee or School Board meetings. Therefore, the decision of the School Board

to expel R.B. for possession of marijuana was supported by substantial evidence and was not

arbitrary or capricious. Thus, we likewise find that as to this issue, the School Board's decision is

beyond an appellate court's authority to disturb on appeal.

III. WHETHER MISSISSIPPI CODE ANNOTATED SECTION 37-7-301(e) REQUIRES SCHOOL

BOARDS TO CONDUCT THEIR OWN PHYSICAL EXAMINATION OF CONTRABAND PRIOR

TO RENDERING DECISIONS.

¶ 40. The School Board argues that the Court of Appeals plurality opinion misinterpreted

Mississippi Code Annotated Section 37-7-301(e) when the plurality opined that the School Board

improperly delegated to its superintendent the decision as to whether the instrument in question

was a weapon. The School Board further contends that there is no precedent requiring school

boards to physically examine contraband before rendering a decision.

¶ 41. Mississippi Code Annotated Section 37-7-301(e) states in pertinent part:

The school boards of all school districts shall have the following powers, authority and duties in

addition to all others imposed or granted by law, to wit:....(e) To suspend or to expel a pupil or to

change the placement of a pupil to the

Page 403

school district's alternative school or homebound program for mis-conduct in the school or on

school property ... when such conduct by a pupil, in the determination of the school superintendent

or principal, renders that pupil's presence in the classroom a disruption to the educational

environment of the school or a detriment to the best interest and welfare of the pupils and teacher

of such class as a whole, and to delegate such authority to the appropriate officials of the district.

Miss.Code Ann. § 37-7-301(e) (Rev.2007).

¶ 42. Once again, Judge Roberts is correct when he states in his dissent that a plain


reading of the statute authorizes school boards to delegate disciplinary and placement decisions

to other school administrators, so long as school boards make the final determination. Hinds

County Sch. Dist. v. R.B., 10 So.3d 495, 508, ¶ 58 (Miss.Ct.App.2007). Judge Roberts was correct

in his assertion that the School Board merely delegated authority to the superintendent in making

a determination as to whether the instrument in question constituted a weapon that violated school

policy and state law, but the School Board itself made the ultimate determination regarding the

expulsion. Id. In addition to the superintendent's determination, the School Board members also

viewed the instrument D.L.B. presented them (an instrument he described as identical to the one

confiscated from R.B.), heard statements from D.L.B., and received statements from Principal

Campbell and the school resource officer describing the instrument as a weapon.

¶ 43. As Judge Roberts's dissent points out, school boards often do not have access to

contraband for the purpose of inspection. Contraband, such as a weapon or drugs, is often

necessarily and properly confiscated by police. It is quite frequently necessary for school boards to

delegate such inspections to school resource officers, principals, or other school officials.

Mississippi Code Annotated Section 37-7-301(e) grants school boards the power to suspend and

expel " when such conduct by a pupil, in the determination of the school superintendent or

principal, renders that pupil's presence in the classroom a disruption" or " a detriment to the best

interest and welfare of the pupils." Miss.Code Ann. § 37-7-301(e) (Rev.2007) (emphasis added).

Further, the statute provides for delegation of the power to suspend or expel to " the appropriate

officials of the district." A plain reading of this language leads to the conclusion that school boards

are acting within their statutory authority to delegate such findings of fact in disciplinary matters.

Therefore, we respectfully disagree with the Court of Appeals plurality that the School Board

abdicated its authority pursuant to Mississippi Code Annotated Section 97-37-17, when its

members delegated authority to the superintendent to make a determination as to whether the

seized instrument was a weapon. Where school boards make final determinations regarding

suspensions and expulsions, even in cases where school administrators have submitted findings

of fact to those school boards, those determinations are not per se arbitrary and capricious.

CONCLUSION

¶ 44. For the reasons stated, the judgments of the Court of Appeals and the Hinds County

Chancery Court are reversed and the Hinds County School District Board of Trustees' expulsion of

R.B. is reinstated.

¶ 45. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CHANCERY COURT

FOR THE FIRST JUDICIAL DISTRICT OF HINDS

Page 404

COUNTY ARE REVERSED AND THE HINDS COUNTY SCHOOL DISTRICT BOARD OF

TRUSTEES' EXPULSION OF R.B. IS REINSTATED.

SMITH, C.J., WALLER, P.J., RANDOLPH AND LAMAR, JJ., CONCUR. DICKINSON, J.,

CONCURS IN PART. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED

BY DIAZ, P.J., AND EASLEY, J. DICKINSON, J., JOINS IN PART.

GRAVES, Justice, Dissenting.

¶ 46. The majority's decision to affirm the Hinds County School Board's decision to expel


R.B. substantially erodes the due process rights of Mississippi public school students. The record

does not support a finding that R.B. was expelled from Byram Middle School on the basis of

substantial evidence. Neither does the evidence support a finding that he was afforded due

process when expelled from the Hinds County School District. Therefore, I respectfully dissent.

I.

¶ 47. The majority finds that the Hinds County School Board properly expelled R.B., then a

twelve-year-old in the sixth grade, for allegedly possessing a weapon. When school officials find

that a student has committed misconduct and should be expelled, the student has the right to

appeal the school's decision to a three-member Appeals Committee panel. If the Appeals

Committee upholds the decision to expel the student for thirty days or more, then the School

Board reviews the case and makes a final determination. When reviewing such cases, the School

Board sits as a factfinder. Jones v. Bd. of Trs., 524 So.2d 968, 973 (Miss.1988); T.B. ex rel. C.B.

v. Bd. of Trs., 931 So.2d 634, 638 (Miss.Ct.App.2006).

¶ 48. In this case, after R.B. and D.L.B. challenged R.B.'s expulsion from Byram Middle

School, the School Board [10] upheld the decision to expel R.B. and send him to Main Street

Alternative School for the remainder of the 2003-04 school year and the beginning of the 2004-05

school year. The School Board also placed R.B. on probation for the 2004-05 school year. The

majority holds that there was substantial evidence justifying R.B.'s expulsion for possessing a

weapon.

¶ 49. The majority does not mention that the device-the alleged weapon-belonged to R.B.'s

mother and was part of a nail manicure set. The testimony revealed that R.B. and his mother had

similar backpacks, and when R.B.'s backpack strap broke, his mother simply transferred R.B.'s

books and belongings into her backpack, which, as they later realized, still contained the device in

question. R.B. then brought his belongings to school in his mother's backpack.

¶ 50. The device was never viewed or inspected by the Appeals Committee before it upheld

the decision to suspend R.B. When reviewing the Appeals Committee's decision, the School

Board also did not view the device to determine whether or not it was a weapon. Although

contraband such as illegal substances or weapons such as firearms possessed by students may

be unavailable for viewing in some cases of student misconduct, this device

Page 405

remained in the control of the school. The School Board provides no explanation as to why the

device could not have been examined by either the Appeals Committee or the School Board.

Moreover, the nature of the device itself was-and is still-vigorously contested. The fact that the

school district, the student, the chancery court, the Court of Appeals, and now this Court cannot

agree on the nature of the device is an indication of how important it was for the Appeals

Committee and School Board to have examined the object in the first place. A proper inspection of

the object was integral to the Appeals Committee's and School Board's decisions as to whether or

not R.B. should be expelled. The District Court for the Northern District of Mississippi has stated

that " [i]n a system where criminal offenders are afforded individualized punishment upon review of

the facts and circumstances regarding the offense, students in our public school systems, who

may also face a daunting punishment, should at least be afforded a thorough review of their case,


prior to imposition of penalty." Colvin ex rel. Colvin v. Lowndes County, 114 F.Supp.2d 504, 512

(N.D.Miss.1999) (emphasis added). Certainly, in this case, a thorough review by the Appeals

Committee and School Board should have included an inspection of the alleged weapon.

¶ 51. But the Appeals Committee merely relied on the reports of Principal Campbell and a

school resource officer, both of whom described the device as a pocket knife. The School Board,

in turn, relied on the Appeals Committee's findings and the superintendent's opinion regarding the

nature of the device. The Court of Appeals plurality concluded that due process was violated when

the School Board delegated the authority to classify the device to the superintendent. R.B., 10

So.3d at 509-12. The School Board has a duty, as a factfinder, to make certain factual

determinations. See Jones, 524 So.2d at 973. Although superintendents have the statutory

authority to suspend or expel students in the first instance, the superintendent's judgment cannot

be substituted for that of the School Board when it reviews a decision to punish a student.

Miss.Code Ann. § 37-7-301(e) (Rev.2007).

¶ 52. It should be noted that the superintendent never saw the device either. She determined

that the device was a weapon based on her review of a blurry photocopy of part of the device. The

photocopy depicts the device with only one of the three prongs extended. Also, the size of the

device portrayed in the photocopy is slightly larger than the device itself. The record includes a

second photocopy, in which the size of the device is significantly larger than its actual size. It is not

clear whether the School Board viewed either photocopy. Either way, it had already wrongfully

abdicated its factfinding duties by relying on the superintendent's classification of the device.

¶ 53. The majority adopts the School Board's argument that affirming the Court of Appeals'

plurality decision will have a " chilling effect" on school boards, which will now be unsure of the

bounds of their discretion. Maj. Op. at ¶ 25. I disagree. It would be perfectly reasonable for this

Court to hold that when allegations are made against a student regarding an item that may or may

not be prohibited and when the item remains in the control and custody of the school district, the

Appeals Committee and School Board must actually examine the item. It would then be within the

discretion of the Appeals Committee and School Board to determine whether or not the student

has committed misconduct.

¶ 54. The Appeals Committee and School Board should have examined the

Page 406

alleged weapon possessed by R.B. It is patently unfair that both the Appeals Committee and

School Board would severely sanction a student for possessing a weapon without verifying that

the item in question was actually a weapon. That unfairness is condoned by the majority's finding

that the School Board did not err when it failed to examine the device before expelling R.B.

II.

¶ 55. The majority also concludes that R.B. was afforded due process throughout the review

of the allegations that he possessed marijuana. The School Board upheld the Appeals

Committee's recommendation that R.B. be expelled from the school district for one calendar year.

¶ 56. The Supreme Court has held that a student may not be deprived of his or her right to a

public education without due process of law. See, e.g., Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct.

729, 736, 42 L.Ed.2d 725, 734-35 (1975). This Court has held that a school deprives a student of


due process when it fails to follow its own procedures. Warren County Bd. of Educ. v. Wilkinson,

500 So.2d 455, 460-61 (Miss.1986). R.B. received written notice of the Appeals Committee

hearing regarding the marijuana-related allegations. The notice explicitly provided that he was

entitled " [t]o cross-examine or otherwise pose questions to persons giving statements adverse to

the student." In determining that R.B. possessed marijuana, the Appeals Committee and School

Board relied on typewritten, signed statements given by two students, J.D. and D.W. The

statements are self-exculpatory and, to an extent, do not make sense.[11] R.B. did not have the

opportunity to cross-examine or otherwise pose questions to J.D. or D.W. at either the Appeals

Committee or School Board hearings. In fact, R.B. was not even permitted to view the two

statements until after his expulsion, when the School Board produced them to D.L.B.'s attorney in

preparation for the chancery court hearing. R.B. should have been permitted to question the two

students. At the very least, R.B. should have been given access to their statements in advance of

the Appeal Committee and School Board hearings.

¶ 57. I am not persuaded by the majority's attempt to distinguish the facts in Wilkinson, 500

So.2d 455, from the facts in this case. The notice R.B. received informed him that he would be

permitted to cross-examine or pose questions to individuals who gave statements against him.

The majority claims that the entitlements described in the notice were not a part of the " pre-

established school district policy." Maj. Op. at ¶ 35. But the Hinds County School District Policy

Handbook states in

Page 407

Section JDE (July 2004) Expulsion that " [a]lthough the [Appeals Committee] proceedings will be

conducted informally, the student and parent or guardian are entitled by law to: ... Cross-examine

or otherwise pose questions to persons giving statements adverse to the student." Even if the

rights listed in the notice were not part of the school's policy, that does not change the fact that

R.B. was explicitly informed by school officials that he would be able to exercise certain rights that

he was then denied. Fairness requires that R.B. be afforded the entitlements that the school

informs him he has. Fairness requires that R.B. be able to rely on the information provided by the

school, especially with respect to his rights.

¶ 58. The School Board stated that R.B. would be permitted to cross-examine or question

individuals offering statements against him. Yet the School Board denied him that right. That

action was a denial of R.B.'s due process rights. See Wilkinson, 500 So.2d at 460-61. Additionally,

the denial of access to these statements violated R.B.'s due process rights. Jones, 524 So.2d at

973 (" Though confrontation may not be an absolute necessity-or even advisable-in every case [of

student misconduct], written statements should ordinarily be provided." ). Thus, at the very least,

R.B. should have been given copies of the statements by J.D. and D.W. before the Appeals

Committee and School Board hearings.

¶ 59. The majority finds that students who report drug activity at school should be able to

provide statements against other students without having their identities revealed or being subject

to questioning by the accused student. The majority is wary of the risk of retaliation against

students who report drug activity. This is a valid concern and may require that student witnesses

remain anonymous in other cases. However, in this case, a compelling argument (which the Court


of Appeals plurality accepted) was made that R.B. would not have posed a threat to, or attempted

to retaliate against, J.D. and D.W. R.B., 10 So.3d at 503, n. 3. R.B. knew the two students

because he was in the classroom with them when the incident occurred. Thus, preventing their

statements from being viewed by R.B. in order to protect their identities served no purpose.

¶ 60. The majority references R.B.'s " extensive discipline record" to show that R.B. would

have been a threat to J.D. and D.W. Maj. Op. at ¶ 36. The record reflects that during the 2003-04

school year, R.B. was punished for one instance each of fighting, insubordination, and being

disruptive in class. I do not believe this can fairly be characterized as an " extensive discipline

record."

¶ 61. The majority finds that the School Board cannot produce students to testify as

witnesses in disciplinary proceedings because it lacks the subpoena power. Maj. Op. at ¶ ¶ 14, 32,

37. At the same time, the majority finds that R.B. himself could have produced students to testify in

his defense. Maj. Op. at ¶ 37. Firstly, if the School Board cannot produce students to testify, it is

highly unlikely that an accused student would be able to persuade a student to testify and subject

himself or herself to questions from the School Board. Secondly, an accused student in R.B.'s

position may wish to have students, such as J.D. and D.W., testify as adverse witnesses. The risk

of retaliation against student witnesses is likely to increase if accused students are responsible for

producing them. Students, and perhaps their parents, may solicit other students to testify. There

may be tense or heated conversations between students and family members on both sides,

particularly when an accused student faces suspension or expulsion. If

Page 408

the student witness decides not to testify, the accused student may be tempted to somehow

retaliate. Additionally, placing the burden of production on the accused student could subject him

or her to false accusations of retaliation. Not only will accused students face an uphill battle in

order to produce student witnesses to testify on their behalf, but they may also risk additional

allegations of retaliation against potential student witnesses. Placing the burden of producing

student witnesses on the student could potentially lead to numerous other problems developing

between students and parents as well. In sum, the majority cannot fairly relieve the School Board

of the responsibility of producing student witnesses and then claim that R.B. could and should

have produced his own.

¶ 62. Other than the statements of J.D. and D.W., the school offered no direct evidence that

R.B. possessed marijuana. The school offered a typewritten statement signed by R.B. stating that

J.D. threw him the marijuana, which he then threw onto a bookshelf. The validity of this statement

is questionable. The statement is not written in R.B.'s handwriting, but is typewritten and is

followed by a number of signatures, including R.B.'s. Before obtaining the statement, Mr. Mohr,

the Principal of Main Street Alternative School, told R.B. that they were not going to send him to

jail, but that he needed to give a statement. R.B. complied and gave a statement, which was then

typed up by Mr. Mohr. Neither of R.B.'s parents were present when the statement was given. R.B.

was alone in an office at the school with Mr. Mohr and the school resource officer, Officer Mixon.

The testimony reflects that R.B. may have initially been told that he was under arrest. He sat in the

office while Mr. Mohr contacted D.L.B. and told him that R.B. had been caught selling marijuana.


R.B. was not told that he could decline to give a statement; to the contrary, he was told that the

school would keep him out of jail if he provided a statement.

¶ 63. Despite the questionable validity of the statement, both the School Board and the

majority rely on an admission contained therein. It was of the utmost importance that R.B. and

D.L.B. be given a fair opportunity to defend themselves against the allegations. This should

certainly have included the opportunity to cross-examine, or at least view and present arguments

undermining the veracity of, the students who gave statements implicating R.B. However, R.B.

and D.L.B. were forced to defend against unknown allegations set out in self-exculpatory

statements by R.B.'s peers. In a case concerning the discipline of public school students, the

Supreme Court stated:

" [Fairness] can rarely be obtained by secret, one-sided determination of facts decisive of rights

...." " Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an

assurance of rightness. No better instrument has been devised for arriving at truth than to give a

person in jeopardy of serious loss notice of the case against him and opportunity to meet it."

Goss, 419 U.S. 565, 580, 95 S.Ct. 729 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath,

341 U.S. 123, 170, 171-72, 71 S.Ct. 624, 648-49, 95 L.Ed. 817, 853-54 (1951) (Frankfurther, J.,

concurring)). Nonetheless, this Court concludes today that R.B.'s due process rights were

satisfied. By failing to even require that students accused of misconduct be permitted access to

statements offered against them, the majority sets a low standard indeed for the due process

rights of public school students.

Page 409

¶ 64. The majority states that " even assuming arguendo that R.B. was denied due process,

he has failed to make a showing of substantial prejudice." Maj. Op. at ¶ 38. Again, I must disagree.

The law requires that substantial prejudice be demonstrated in order to show a violation of due

process. See, e.g., Jones, 524 So.2d at 972. R.B. has shown that he was substantially prejudiced

when he was not given an opportunity to fully present his case to the Appeals Committee. R.B.

and D.L.B. were unable to defend against the unknown accusations contained in the student

statements that were reviewed and relied upon by the Appeals Committee and School Board.

Consequently, the School Board upheld the Appeals Committee's decision to expel R.B. from the

entire school district for one calendar year. For these reasons, I disagree with the majority's

conclusion regarding R.B.'s right to cross-examine J.D. and D.W. Based on Wilkinson, R.B.'s due

process rights were violated when he was denied the opportunity to cross-examine J.D. and D.W.

or even to review their statements. Wilkinson, 500 So.2d at 460-61.

III.

¶ 65. Aside from the lack of opportunity to question J.D. and D.W. and the lack of access to

their statements, R.B.'s due process rights were violated by the lack of notice for the School Board

meeting in which the marijuana-related allegations were reviewed. R.B. had a right to be informed

of the meeting so that he would have an opportunity to contest the allegations.

¶ 66. The Supreme Court has held that " the State is constrained to recognize a student's

legitimate entitlement to a public education as a property interest which is protected by the Due

Process Clause and which may not be taken away for misconduct without adherence to the


minimum procedures required by that Clause." Goss, 419 U.S. at 574, 95 S.Ct. 729; see also

Jones, 524 So.2d at 971 (citing Goss, 419 U.S. 565, 95 S.Ct. 729) (" There is no question that

expulsion or suspension from school involves deprivation of a property interest protected by the

Due Process clause." ). The Supreme Court further declared that

" [A]t a minimum [the abstract words of the Due Process Clause] require that deprivation of life,

liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to

the nature of the case." [ Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct.

652, 656-57, 94 L.Ed. 865, 873 (1950).] " The fundamental requisite of due process of law is the

opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363,

1369 (1914).

Goss, 419 U.S. at 579, 95 S.Ct. 729; see also Jones, 524 So.2d at 972 (" Thus, at a minimum, the

due process clause requires notice and opportunity to be heard." ). The District Court in the

Southern District of Mississippi has stated that the Fifth Circuit requires that students subject to

long-term suspensions or expulsions be given a hearing that includes " the ‘ rudimentary

adversary elements,’ " including notice and the opportunity to contest the allegations. Hill ex rel.

Hill v. Rankin County, Miss. Sch. Dist., 843 F.Supp. 1112, 1118 (S.D.Miss.1993). This Court has

also recognized the right of students to receive notice of accusations of misconduct so that they

can contest them. Jones, 524 So.2d at 971.

¶ 67. R.B. and D.L.B. were not notified of the School Board hearing regarding the marijuana

incident, and were thus deprived of the opportunity to present a case to the School Board. The

School Board is

Page 410

charged with the weighty responsibility of making final decisions regarding student suspensions

and expulsions. Neither the School Board nor the Appeals Committee can merely act as a rubber

stamp for the allegations, findings, and recommendations of school officials. See Lee v. Macon

County Bd. of Educ., 490 F.2d 458, 460 (5th Cir.1974) (" Formalistic acceptance or ratification of

the principal's request or recommendation as to the scope of punishment, without independent

Board consideration of what, under all the circumstances, the penalty should be, is less than full

due process." ). When reviewing allegations of student misconduct, the Appeals Committee and

School Board must independently review the claims and evidence. Fairness requires that the

accused student at least be given notice of the School Board hearing so that he or she can be

present to contest the school's allegations.

¶ 68. The Supreme Court has noted that

[d]isciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice

of others; and the controlling facts and nature of the conduct under challenge are often disputed.

The risk of error is not at all trivial, and it should be guarded against if that may be done without

prohibitive cost or interference with the educational process.

Goss, 419 U.S. at 580, 95 S.Ct. 729. Certainly, it would not have been prohibitively costly and

would not have interfered with the educational process to provide adequate notice through a

simple letter to R.B. and D.L.B. informing them of the School Board hearing. Section JDE (July

2004) Expulsion of the Hinds County School District Policy Handbook clearly acknowledges the


right of a student " to appear before the school board" when facing an expulsion for thirty days or

more. This Court has stated that " though courts should not become involved in running schools,

expulsion and suspension are severe sanctions requiring solemn attention to a pupil's rights."

Jones, 524 So.2d at 973. At the very least, R.B. and D.L.B. should have been notified of the

School Board hearing in which it would review the Appeals Committee's recommendation to expel

R.B. from the entire school district for a year.

¶ 69. Again, R.B. suffered prejudice from the lack of notice. He was denied the right to be

present and contest the allegations against him before the individuals who would be deciding his

punishment. He was denied the bare minimum that due process guarantees-notice and the

opportunity to be heard. See, e.g., Goss, 419 U.S. at 579, 95 S.Ct. 729 (citations omitted). There

may be no legal precedent binding on this Court " indicating that R.B. was entitled to two full

evidentiary hearings," but due process requires notice and the opportunity to be heard, especially

in cases such as this, where the student's right to public education is at risk for an extended period

of time. Maj. Op. at ¶ 30.

¶ 70. School officials interact on a daily basis with students and may interact regularly with

students' parents as well. It follows that school officials may not always be able to maintain

objectivity with regard to certain students and parents. School officials may harbor negative, or

even antagonistic, feelings towards certain students and parents. The facts of this case are a

helpful illustration of this point. Shortly before the Appeals Committee hearing for the " weapon" -

related allegations, D.L.B. had met with Principal Smith of Gary Road Intermediate School. D.L.B.

had raised questions challenging the process through which P.T.A. officers were selected. When

D.L.B. arrived at a follow-up meeting with Principal Smith, he found that the latter had summoned

a

Page 411

member of the police department to his office because he thought that D.L.B. " might get out of

hand." D.L.B. later discovered that Principal Smith was a member of the three-person panel

comprising the Appeals Committee reviewing the allegations that R.B. possessed a weapon. The

earlier interactions between Principal Smith and D.L.B. left D.L.B. with serious doubts as to

whether Principal Smith and the Appeals Committee panel would exercise the necessary

objectivity with respect to the accusations against R.B.

¶ 71. In situations such as this, it is crucial that the Appeals Committee and School Board

diligently, conscientiously, and impartially review all the relevant evidence, hear both sides'

versions of events, and determine the culpability, if any, of the student as well as the appropriate

punishment. In reaching these determinations, the Appeals Committee and School Board should

be mindful of the negative impact that their decisions can have on the futures of young students-

especially in the case of suspensions and expulsions. The right to a public education is a

fundamental right protected by states. Clinton Mun. Separate Sch. Dist. v. Byrd, 477 So.2d 237,

240 (Miss.1985). This Court has held that " the right to a minimally adequate public education

created and entailed by the laws of this state is one we can only label fundamental." Id.; see also

Hill ex rel. Hill v. Rankin County, Miss. Sch. Dist., 843 F.Supp. 1112, 1117 (S.D.Miss.1993)

(stating that Mississippi Code Section 37-1-2 provides the children of Mississippi the right to a free


public education). In the landmark decision, Brown v. Board of Education, the Supreme Court

stated that

education is perhaps the most important function of state and local governments. Compulsory

school attendance laws and the great expenditures for education both demonstrate our recognition

of the importance of education to our democratic society .... It is the very foundation of good

citizenship .... [I]t is a principal instrument in awakening the child to cultural values, in preparing

him for later professional training, and in helping him to adjust normally to his environment ... [I]t is

doubtful that any child may reasonably be expected to succeed in life if he is denied the

opportunity of an education.

Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873, 880 (1954).

¶ 72. In Goss v. Lopez, the Supreme Court recognized that the charges of misconduct

lodged against several students " could seriously damage the students' standing with their fellow

pupils and their teachers as well as interfere with later opportunities for higher education and

employment." Goss, 419 U.S. at 575, 95 S.Ct. 729. Undoubtedly, the punishments accompanying

the charges can do similar, if not greater, harm to a student's future. In recent years, public

schools have engaged in increasingly punitive practices with regard to students who misbehave.

NAACP Legal Defense and Educational Fund, Inc., Dismantling the School-to-Prison Pipeline 1

(2006). The NAACP Legal Defense and Educational Fund (LDF) has reported that " the punitive

and overzealous tools and approaches of the modern criminal justice system [that] have seeped

into our schools ... hasten [students'] entry into the juvenile, and eventually the criminal, justice

system, where prison is the end of the road." Id. Others have found this to be true as well:

students who are suspended are at high risk of being disciplined again, dropping out of school,

and entering the juvenile justice system. Miriam Rokeach & John Denvir, Front-Loading Due

Process: A Dignity-Based Approach to School Discipline, 67 Ohio St. L.J. 277, 284-6 (2006). This

phenomenon

Page 412

is commonly referred to as the school-to-prison pipeline or the schoolhouse-to-jailhouse track.

See, e.g., Avarita L. Hanson, Have Zero Tolerance School Discipline Policies Turned into a

Nightmare? The American Dream's Promise of Equal Educational Opportunity Grounded in Brown

v. Board of Education, 9 UC Davis J. Juv. L. & Pol'y 289, 340 (2005).

¶ 73. Because of fears of school violence, public school officials have turned to harsh

disciplinary policies including mandatory zero-tolerance policies, which often result in suspensions

and expulsions that remove students from their schools. Frances P. Solari & Julienne E.M.

Balshaw, Outlaws and Exiled: Zero Tolerance and Second Generation Race Discrimination in

Public Schools, 29 N.C. Cent. L.J. 147, 149 (2007); Rokeach & Denvir, supra, at 282; NAACP

Legal Defense and Educational Fund, Inc., supra, at 2. However, " [a] study of school violence ...

found that after four years of implementing zero tolerance policies, schools employing zero

tolerance reported greater levels of discipline problems than schools without zero tolerance."

Rokeach & Denvir, supra, at 284.

¶ 74. Increasing numbers of children are removed from public schools for increasingly minor

conduct. NAACP Legal Defense and Educational Fund, Inc., supra, at 2-3; see also Rokeach &


Denvir, supra, at 284. When faced with disciplining students, school boards are often focused on a

quick, simple solution-ridding the school of the " problem students," who are then left " out in the

community, unsupervised and unsupported." Rokeach & Denvir, supra, at 280-82. This has

serious consequences for children who are removed from school for even a few days. It has been

pointed out that " [w]hen kids are removed from school, they end up in inferior settings such as

suspension centers, alternative schools, and juvenile prisons-places where meaningful

educational services are practically nonexistent and students with histories of behavioral problems

can negatively influence one another." NAACP Legal Defense and Educational Fund, Inc., supra,

at 4; Augustina Reyes, The Criminalization of Student Discipline Programs and Adolescent

Behavior, 21 St. John's J.L. Comm. 73, 78 (2006). This observation resonates with the facts of this

case. When R.B. was expelled from Byram Middle School, he was sent to Main Street Alternative

School. At the alternative school, R.B. and several other students were left unsupervised in a

classroom and someone brought out some marijuana. Every morning before R.B. went to the

alternative school, he was searched at home by D.L.B. and then, when he got to school, he was

searched by security officers. On the day of the marijuana incident, R.B. was only carrying three

books, without a backpack, and $1.50 in his pocket for lunch. He was only wearing jeans and a t-

shirt because coats were not permitted. Despite his basic attire and lack of personal belongings,

R.B. was expelled for possession of marijuana [12].

¶ 75. By concluding that the Hinds County School Board properly expelled R.B. from Byram

Middle School and from the entire school district, the majority has dealt a serious blow to the due

process rights of our public school students. Not only did the Appeals Committee and School

Board never view the alleged weapon possessed by R.B., but the Appeals

Page 413

Committee denied him the right to question student witnesses, and the School Board denied him

the basic right to notice. For all the reasons stated herein, I respectfully dissent.

DIAZ, P.J., AND EASLEY, J., JOIN THIS OPINION. DICKINSON, J., JOINS THIS OPINION IN

PART.

---------

Notes:[1] The ACLU's motion for leave to file amicus brief did not go uncontested by the School Board,

which filed its Response to Motion for Leave to File Brief of Amicus Curiae. The ACLU thereafter

filed its Supplemental Brief in Support of Motion For Leave to File Brief of Amicus Curiae, and the

School Board then filed its Response to ACLU's Supplemental Brief in Support of Motion for Leave

to File Brief of Amicus Curiae. In due course, this Court granted the ACLU's motion for leave to file

amicus brief and the ACLU filed its amicus brief pursuant to this Court's order.[2] Almost all of the facts are gleaned from the trial court's opinion.[3] Mississippi Code Annotated Section 97-37-17(4) (Rev.2006) reads as follows:

It shall be a misdemeanor for any person to possess or carry, whether openly or concealed, any

BB gun, air rifle, air pistol, bowie knife, dirk, dagger, slingshot, leaded cane, switchblade knife,

blackjack, metallic knuckles, razors and razor blades (except solely for personal shaving), and any

sharp-pointed or edged instrument except instructional supplies, unaltered nail files and clips and


tools used solely for preparation of food, instruction and maintenance on educational property. Any

person violating this subsection shall be guilty of a misdemeanor and, upon conviction thereof,

shall be fined not more than One Thousand Dollars ($1,000.00), or be imprisoned not exceeding

six (6) months, or both.[4] There is some dispute by the parties in their statements as to whether Principal Campbell

requested this additional search involving the removal of R.B.'s clothing, or whether Principal

Campbell had summoned D.L.B. to assist with the search because R.B. was the one who wished

to remove his clothing for a more invasive search.[5] D.L.B. testified that Mr. Campbell had given him the choice to either consent to a more invasive

search of R.B. (including removal of his underwear); or, in the alternative, Principal Campbell

would have R.B. arrested for possession of a weapon.[6] The Appeals Committee is made up of three members and a hearing officer, who conducts the

proceedings.[7] In viewing the letter to D.L.B. dated June 11, 2004, we note that the language implies that

notice of the School Board hearing was given. The letter opens, " As you were notified, the Hinds

County School Board met in regular session at 5 P.M. on Thursday, June 10, 2004." [8] Throughout Hinds County's Petition for Certiorari, the Appellants refer to the Court of Appeals

majority. Since the decision was a five-five split, our discussion references the Court of Appeals

plurality.[9] The ACLU cites Board of Trustees of Pascagoula Municipal Separate School District v. T.H.,

681 So.2d 110, 114 (Miss.1996).[10] It should be noted that, as the Court of Appeals plurality points out, D.L.B. and R.B. were

permitted five minutes to speak at the School Board meeting, but were excluded from the rest of

the meeting, including the portion during which the school presented evidence against R.B. Hinds

County Sch. Dist. Bd. of Trs. v. R.B., No.2006-CA-00326-COA, 10 So.3d 495, 508

(Miss.Ct.App.2007).[11] J.D.'s entire statement reads as follows: " I, [J.D.], admit to when I came to school I bought

some ‘ weed’ (marijuana) from [C.B.] at school and then bought some more marijuana from [Z.M.]

and then gave all the marijuana to [R.B.] and [R.B.] tried to frame me for it by hiding it in his desk."

D.W.'s entire statement reads as follows:[R.B.] and [J.D.], they the ones who had it, they were

trading it back and forth. [R.B.] had most of it and [J.D.] was asking for change to buy some from

[R.B.]. [J.D.] asked [C.] and [C.] said I am not fixing to get involved with ya'll. [R.B.] sold some to

[B.] and gave or sold some to [G.]. [R.B.] was supposed to put it in the bathroom, but [G.] couldn't

find it so he told [R.B.] he wanted his money back. [R.B.] said, ‘ I put it up there, so it is just ya'll's

problem.’ [R.B.] has it at school. [R.B.] showed the marijuana. [R.B.] also showed the money.

[R.B.] said [B.] is my # 1 costomer [sic]. [R.B.] was also talking to [Z.]. These conversations

occurred in Butler's, Mixon's and John's rooms.[C.L.] said that whoever had weed needed to hide

it (Mrs. John's room).[12] The initial allegations against R.B. were that he possessed and attempted to conceal and sell

marijuana.

---------


IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12-60264

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

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

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, BARKSDALE, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON and COSTA, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge:

Away from school or a school function and without using school resources

(off-campus speech), Taylor Bell, a student at Itawamba Agricultural High

School in Itawamba County, Mississippi, posted a rap recording containing

threatening language against two high school teachers/coaches on the Internet

(first on his publicly accessible Facebook profile page and then on YouTube),

United States Court of Appeals Fifth Circuit

FILED August 20, 2015

Lyle W. Cayce Clerk

Case: 12-60264 Document: 00513162565 Page: 1 Date Filed: 08/20/2015


intending it to reach the school community. In the recording, Bell names the

two teachers and describes violent acts to be carried out against them.

Interpreting the language as threatening, harassing, and intimidating the

teachers, the Itawamba County School Board took disciplinary action against

Bell.

Bell claims being disciplined violated his First Amendment right to free

speech. On cross-motions for summary judgment, the district court ruled, inter

alia: the school board, as well as the school-district superintendent, Teresa

McNeece, and the school principal, Trae Wiygul, acting in their official

capacities (the school board), acted reasonably as a matter of law. Bell v.

Itawamba Cnty. Sch. Bd., 859 F. Supp. 2d 834 (N.D. Miss. 2012).

Primarily at issue is whether, consistent with the requirements of the

First Amendment, off-campus speech directed intentionally at the school

community and reasonably understood by school officials to be threatening,

harassing, and intimidating to a teacher satisfies the almost 50-year-old

standard for restricting student speech, based on a reasonable forecast of a

substantial disruption. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393

U.S. 503, 514 (1969) (infringing otherwise-protected school speech requires

“facts which might reasonably have led school authorities to forecast

substantial disruption of or material interference with school activities”).

Because that standard is satisfied in this instance, the summary judgment is

AFFIRMED.

I.

On Wednesday, 5 January 2011, Bell, a high-school senior, posted a rap

recording on his public Facebook profile page (and later on YouTube), using

what appears to be a representation of a Native American as the rap

recording’s cover image. (His high-school mascot is a Native American.) The



recording, in part, alleges misconduct against female students by Coaches W.

and R.

Although there are three different versions of the transcribed rap

recording in the summary-judgment record, the school board stipulated, at the

preliminary-injunction hearing for this action, to the accuracy of the following

version provided by Bell, who refers to himself in the recording as “T-Bizzle”.

(Accordingly, except for deleting part of both coaches’ names, the numerous

spelling and grammatical errors in the following version are not noted.)

Let me tell you a little story about these Itawamba coaches / dirty ass niggas like some fucking coacha roaches / started fucking with the white and know they fucking with the blacks / that pussy ass nigga W[.] got me turned up the fucking max / 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 daw-city / the reason he fucking around cause his wife ain’t got no tidies / This niggha 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 hurt What the hell was they thinking when they hired Mr. R[.] / 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 hell / Talking about you gangsta / drive your mama’s PT Cruiser / Run up on T-Bizzle / I’m going to hit you with my rueger 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 / 30 years old fucking with students at the school Hahahah / You’s a lame / and it’s a dam shame / instead you was lame / eat shit, the whole school got a ring mutherfucker Heard you textin number 25 / 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 / you fucking with the wrong one / going to get a pistol down your mouth / Boww OMG / Took some girls in the locker room in PE / Cut off the lights / you motherfucking freak / Fucking with the youngins / because your pimpin game weak / 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 codie / W[.] 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

(Emphasis added.)

At the very least, this incredibly profane and vulgar rap recording had

at least four instances of threatening, harassing, and intimidating language

against the two coaches:

1. “betta watch your back / I’m a serve this nigga, like I serve the junkies with some crack”;

2. “Run up on T-Bizzle / I’m going to hit you with my rueger”; 3. “you fucking with the wrong one / going to get a pistol

down your mouth / Boww”; and



4. “middle fingers up if you want to cap that nigga / middle fingers up / he get no mercy nigga”.

Bell’s use of “rueger” [sic] references a firearm manufactured by Sturm, Ruger

& Co.; to “cap” someone is slang for “shoot”.

A screenshot of Bell’s Facebook profile page, taken approximately 16

hours after he posted the rap recording, shows his profile, including the rap

recording, was open to, and viewable by, the public. In other words, anyone

could listen to it.

On Thursday, 6 January, the day after the recording was posted, Coach

W. received a text message from his wife, informing him about the recording;

she had learned about it from a friend. After asking a student about the

recording, the coach listened to it at school on the student’s smartphone

(providing access to the Internet). The coach immediately reported the rap

recording to the school’s principal, Wiygul, who informed the school-district

superintendent, McNeece.

The next day, Friday, 7 January, Wiygul, McNeece, and the school-board

attorney, Floyd, questioned Bell about the rap recording, including the veracity

of the allegations, the extent of the alleged misconduct, and the identity of the

students involved. Bell was then sent home for the remainder of the day.

Because of inclement weather, the school was closed through Thursday,

13 January. During Bell’s resulting time away from school, and despite his

having spoken with school officials about his rap recording, including the

accusations against the two coaches, Bell created a finalized version of the

recording (adding commentary and a picture slideshow), and uploaded it to

YouTube for public viewing.

Bell returned to school when it reopened on Friday, 14 January; he was

removed from class midday by the assistant principal and told he was

suspended, pending a disciplinary-committee hearing. (He was permitted to



remain in the school commons until the school bus he rode arrived at the end

of the day.) By letter that day to Bell’s mother, the superintendent informed

her: Bell’s suspension would continue until further notification; and a hearing

would be held to consider disciplinary action for Bell’s “alleged threatening

intimidation and/or harassment of one or more school teachers”. The listed,

possible basis for such action was consistent with the school district’s

administrative disciplinary policy, which lists “[h]arassment, intimidation, or

threatening other students and/or teachers” as a severe disruption.

The disciplinary-committee hearing, originally scheduled for

Wednesday, 19 January, was delayed at Bell’s mother’s request; it was held on

Wednesday, 26 January. Although there is no transcript of the hearing, it was

recorded; that recording is in the summary-judgment record. The hearing

was facilitated by the school-board attorney, Floyd; three disciplinary-

committee members were present, as well as the school principal and Bell, his

mother, and their attorney.

The hearing began with the principal’s providing a summary of events,

after which the YouTube version of the rap recording was played. Among the

disciplinary-committee members’ questions, one member asked Bell whether

he had reported the alleged misconduct to school officials. Bell explained he

had not done so because he believed they would ignore his complaints. Instead,

he made the rap recording because he knew people were “gonna listen to it,

somebody’s gonna listen to it”, acknowledging several times during the hearing

that he posted the recording to Facebook because he knew it would be viewed

and heard by students. Moreover, he explained that at least 2,000 people had

contacted him about the rap recording in response to the Facebook and

YouTube postings.



One of the committee members asked Bell why he had posted a new

version of the rap recording on YouTube, after school officials had discussed

with him his posting it on Facebook. Bell gave a few (and somewhat

conflicting) explanations: the Facebook version was a raw copy, so he wanted

a finalized version on YouTube; the Facebook version was for his friends and

“people locally” to hear, whereas the YouTube version was for music labels to

hear; and he posted the YouTube version with a slideshow of pictures to help

better explain the subject matter of the recording (his Facebook version only

included a brief explanation of the backstory in the caption to the rap

recording).

Although Bell’s attorney, at one point, attempted to discuss the

misconduct of the coaches alleged in the rap recording, the school-board

attorney redirected the proceeding to its purpose: to resolve whether Bell

threatened, harassed, and intimidated the teachers; and, to decide whether his

suspension should be upheld. In numerous instances, the school-board

attorney emphasized this purpose, noting Bell’s “comments made [in the

recording that] ‘you’ve f—ed with the wrong one / going to get a pistol down

your mouth / POW’[,] those are threats to a teacher”.

Bell contested the school-board attorney’s interpretation, responding:

“Well that ain’t really what I said”; and then provided what he described as the

written “original copy” of what had been recorded. (It is unclear from the

disciplinary-committee-hearing recording, or other parts of the summary-

judgment record, which copy Bell provided.) Bell explained he did not mean

he was going to shoot anyone, but that he was only “foreshadowing something

that might happen”. (Emphasis added.) But, he agreed that individuals

“outside the school setting” had made “certain statements” to his mother that

“‘put a pistol down your mouth’[,] that is a direct threat”.



Near the end of the disciplinary-committee hearing, Bell explained

again: he put the recording on Facebook and YouTube knowing it was open to

public viewing; part of his motivation was to “increase awareness of the

situation”; and, although he did not think the coaches would hear the recording

and did not intend it to be a threat, he knew students would listen to it, later

stating “students all have Facebook”.

On 27 January, the day after the hearing, the school-board attorney

informed Bell’s mother by letter that: the disciplinary committee had

determined “the issue of whether or not lyrics published by Taylor Bell

constituted threats to school district teachers was vague”, but that the

publication of the recording constituted harassment and intimidation of two

teachers, in violation of school-district policy and state law; as a result, the

disciplinary committee recommended to the school board that Bell’s seven-day

suspension be upheld and that he be placed in the county’s alternative school

for the remainder of the nine-week grading period (approximately six weeks);

Bell would not be “allowed to attend any school functions and [would] be

subject to all rules imposed by the Alternative School”; and “[he would] be given

time to make up any work missed while suspended or otherwise receive a 0,

pursuant to Board policy”.

After being informed of the disciplinary-committee’s recommendation,

Bell’s attorney informed the school-board attorney, by 31 January telephone

call, that: Bell wished to appeal to the school board the disciplinary-

committee’s recommendation; and, although Bell and his mother were

expected to appear at the board meeting on 7 February, they would be without

counsel because he was unable to attend due to a scheduling conflict.

On 7 February, the school board, after being presented with a recitation

of the recording, unanimously found: Bell “threatened, harassed and



intimidated school employees”. (The only document in the record from the

school-board meeting is the minutes, which state: “Chairman Tony Wallace

entertained a motion by Clara Brown to accept the discipline recommendation

of the Discipline Committee regarding student with MSIS #000252815

(I.A.H.S.) and finding that this student threatened, harassed and intimidated

school employees. Wes Pitts seconded the motion. Motion Carried

Unanimously.”) In other words, unlike the earlier-described disciplinary

committee findings, which do not characterize the rap recording as threatening

(instead, finding that point “vague”), the school board found Bell had not only

harassed and intimidated the teachers, but had also threatened them.

By 11 February letter to Bell’s mother, the school-board attorney

explained the board’s findings: “Bell did threaten, harass and intimidate

school employees in violation of School Board policy and Mississippi State

Law”. (Again, as stated in the written school-district policy, “[h]arassment,

intimidation, or threatening other students and/or teachers” constitutes a

severe disruption.)

Approximately two weeks later, on 24 February, Bell and his mother

filed this action, claiming, inter alia, the school board, superintendent, and

principal (again, the school board) violated his First Amendment right to free

speech. On 2 March, Bell requested a preliminary injunction, seeking his

immediate reinstatement to his high school, including the reinstatement of “all

privileges to which he was and may be entitled as if no disciplinary action had

been imposed”, and all references to the incident being expunged from his

school records.

At the 10 March hearing for the requested injunction, Bell presented four

affidavits from students at his school concerning alleged misconduct by the

coaches. (The affidavits, however, were not considered by the court.) In



addition, Bell, his mother, school-board attorney Floyd, and Franklin (offered

as an expert in rap music) were called as witnesses by Bell; superintendent

McNeece and Coaches R. and W., by the school district.

Bell testified about his making and disseminating the recording; the

meaning behind certain statements in it; and the resulting events leading up

to, and after, school officials disciplined him. Bell’s mother testified about her

recollection of the events leading up to the disciplinary-committee and school-

board hearings. She testified the school principal never stated Bell was

dangerous or threatening, and that Bell was told to stay in the school before

suspending him.

Floyd testified about her recollection of the events before, during, and

after the disciplinary-committee and school-board hearings. During her

testimony, the court noted Bell’s contention that the rap recording addressed

a matter of public concern. Floyd discussed the school-district policy Bell

violated: he threatened, harassed, and intimidated school employees;

similarly, she testified that, at their respective hearings, the disciplinary

committee and the school board discussed the possibility of disruption.

Over the school-district’s objection, Franklin was permitted to testify as

an expert. Characterizing the statements in Bell’s recording as nothing more

than “colorful language” used to entice listeners and reflective of the norm

among young rap artists, Franklin testified that it gave him no cause for

concern. On cross-examination, however, he testified: if an individual’s name

is used in a rap recording and precedes the words “[p]ut a pistol in your mouth

and cap him”, “it would definitely be cause for a conversation with the young

man, absolutely”.

The superintendent testified: she had attended the school-board

meeting; there was a foreseeable danger of substantial disruption at the school



as a result of the rap recording; and, a written version of Bell’s rap recording

was presented to the school board, before it adopted the disciplinary-

committee’s recommendation for suspension and temporary placement in the

alternative school.

Both coaches identified in the rap recording testified that it adversely

affected their work at the school. Coach R. testified: subsequent to the

publication of the recording, students began spending more time in the gym,

despite teachers’ telling them to remain in classrooms; and the recording

affected him in the way he conducted himself around students, noting he would

no longer work with female members of the track team, instead instructing

males on the team on how to coach the females and then having the males do

so. Coach W. testified he: interpreted the statements in the rap recording

literally, after hearing it on a student’s smartphone at school; was “scared”,

because “you never know in today’s society . . . what somebody means, [or] how

they mean it”; and would not allow the members of the school basketball team

he coached to leave after games until he was in his vehicle.

After finding Bell’s last day attending the alternative school would be

the next day, 11 March, the district court ruled whether to grant injunctive

relief was moot. Accordingly, the requested injunction was denied.

It does not appear that any discovery took place after the preliminary-

injunction hearing. On 9 May, following a case-management conference, the

magistrate judge entered an order stating: “it appears that there are no factual

issues and that this case should be resolved by motions for summary

judgment”; and the parties had 90 days to file those motions.

Therefore, approximately three months later, the school board filed its

summary-judgment motion on 1 August; Bell and his mother, on 5 August. On

15 March 2012, the district court denied the Bells’ motion and granted the



school board’s. In doing so, it concluded the rap recording constituted

“harassment and intimidation of teachers and possible threats against

teachers and threatened, harassed, and intimidated school employees”. Bell,

859 F. Supp. 2d at 840 (internal quotation marks omitted). The court also

concluded the rap recording “in fact caused a material and/or substantial

disruption at school and . . . it was reasonably foreseeable to school officials the

song would cause such a disruption”. Id. Moreover, the court concluded, inter

alia: (1) the superintendent and principal were entitled to qualified immunity

in their individual capacities; and (2) Bell’s mother could not show a violation

of her Fourteenth Amendment rights (she claimed the school’s disciplining Bell

violated her right to make decisions regarding the custody and care of her son).

Id. at 841–42.

On appeal, only the summary judgment against Bell’s First Amendment

claim was challenged. A divided panel in December 2014 held, inter alia: the

school board violated Bell’s First Amendment right by disciplining him based

on the language in the rap recording. Bell v. Itawamba Cnty. Sch. Bd., 774

F.3d 280, 304–05 (5th Cir. 2014), reh’g en banc granted & opinion vacated, 782

F.3d 712 (5th Cir. 2015). En-banc review was granted in February 2015.

II.

Because the summary judgment against Bell’s mother’s Fourteenth

Amendment claim and for the school officials’ qualified-immunity claim was

not contested on appeal, the only issue before our en-banc court is the summary

judgment against Bell’s First Amendment claim. (The misconduct alleged by

Bell against the two teachers is, of course, not at issue.)

A summary judgment is reviewed de novo, applying the same standard

as did the district court. E.g., Feist v. La., Dep’t of Justice, Office of the Att’y

Gen., 730 F.3d 450, 452 (5th Cir. 2013). Summary judgment is proper when



“there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law”. Fed. R. Civ. P. 56(a). “A genuine dispute of

fact exists when evidence is sufficient for a reasonable jury to return a verdict

for the non-moving party, and a fact is material if it might affect the outcome

of the suit.” Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (citations

and quotation marks omitted).

In determining whether to grant summary judgment, the court, in its de

novo review, views the evidence in the light most favorable to the nonmovant.

E.g., Dameware Dev., L.L.C. v. Am. Gen. Life Ins. Co., 688 F.3d 203, 206–07

(5th Cir. 2012). Consistent with that, on cross-motions for summary judgment,

“we review [de novo] each party’s motion independently, viewing the evidence

and inferences in the light most favorable to the nonmoving party”. Cooley v.

Hous. Auth. of Slidell, 747 F.3d 295, 298 (5th Cir. 2014) (internal quotation

marks omitted) (quoting Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493,

498 (5th Cir. 2001)).

The summary-judgment record at hand includes, inter alia: (1) the

affidavits of four students regarding the coaches’ alleged misconduct; (2)

screenshots of Bell’s Facebook page; (3) a transcription of the rap recording

submitted by the school board; (4) a transcription of the recording submitted

by Bell (stipulated version); (5) the letter from the superintendent to Bell’s

mother, informing the Bells of a hearing before the disciplinary committee; (6)

the digital recording of the rap recording; (7) the first screenshot of Bell’s

Facebook “wall”; (8) the second screenshot of Bell’s Facebook “wall”; (9) the

recording of the disciplinary-committee hearing; (10) the minutes of that

hearing, containing the recommended disciplinary action; (11) the school-board

attorney’s letter to Bell’s mother, informing her of the disciplinary committee’s

findings and recommended discipline; (12) the school-board-hearing minutes;



(13) the school-district’s discipline policy; (14) the school-board attorney’s letter

to Bell’s mother informing her of the school-board’s determination; and (15) the

transcript of the preliminary-injunction hearing.

A.

Students qua students do not forfeit their First Amendment rights to

freedom of speech and expression. Tinker, 393 U.S. at 506, 511 (“School

officials do not possess absolute authority over their students . . . . In the

absence of a specific showing of constitutionally valid reasons to regulate their

speech, students are entitled to freedom of expression of their views.”). On the

other hand, the First Amendment does not provide students absolute rights to

such freedoms, and those rights must be tempered in the light of a school

official’s duty to, inter alia, “teach[] students the boundaries of socially

appropriate behavior”, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681

(1986), and “protect those entrusted to their care”, Morse v. Frederick, 551 U.S.

393, 408 (2007). As Justice Oliver Wendell Holmes, Jr., wrote nearly a century

ago: “[T]he character of every act depends upon the circumstances in which it

is done. The most stringent protection of free speech would not protect a man

in falsely shouting fire in a theatre and causing a panic.” Schenck v. United

States, 249 U.S. 47, 52 (1919) (citation omitted). Therefore, because “the

constitutional rights of students in public school are not automatically

coextensive with the rights of adults in other settings”, Fraser, 478 U.S. at 682,

certain speech, which would be protected in other settings, might not be

afforded First Amendment protection in the school setting.

Balancing these competing interests, Tinker provided in 1969 the

standard for evaluating whether the First Amendment protects a student’s

speech. There, the Court considered the suspension of students for wearing

black armbands in protest against the Vietnam War. Tinker, 393 U.S. at 505–



14. In holding the students’ speech protected under the First Amendment, the

Court, focusing primarily on the effect of that speech on the school community,

held: A student “may express his opinions . . . if he does so without materially

and substantially interfer[ing] with the requirements of appropriate discipline

in the operation of the school and without colliding with the rights of others”.

Id. at 513 (alteration in original) (emphasis added) (internal quotation marks

omitted). Put another way, “conduct by the student, in class or out of it, which

for any reason . . . materially disrupts classwork or involves substantial

disorder or invasion of the rights of others is, of course, not immunized . . . ”.

Id. (emphasis added). Approximately three years after Tinker, our court held

this standard can be satisfied either by showing a disruption has occurred, or

by showing “demonstrable factors that would give rise to any reasonable

forecast by the school administration of ‘substantial and material’ disruption”.

Shanley v. Ne. Indep. Sch. Dist., Bexar Cnty., Tex., 462 F.2d 960, 974 (5th Cir.

1972) (emphasis added) (holding school’s suspension of students for their off-

campus distribution of “underground” newspaper violated Tinker).

Since Tinker, the Court has revisited student speech on several

occasions, each time carving out narrow exceptions to the general Tinker

standard based on certain characteristics, or content, of the speech. See, e.g.,

Morse, 551 U.S. at 425 (Alito, J, concurring) (grave and unique threats to the

physical safety of students, in particular, speech advocating illegal drug use);

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (school-sponsored

speech); Fraser, 478 U.S. at 685 (lewd, vulgar, or indecent speech); see also

Morgan v. Swanson, 659 F.3d 359, 374 (5th Cir. 2011) (en banc) (describing the

Court’s holdings as “expand[ing] the kinds of speech schools can regulate . . . .

to several broad categories of student speech” (internal quotation marks

omitted)). In Fraser, the Court held the school board acted within its authority



when it disciplined a student for an “offensively lewd and indecent” speech

delivered at a student assembly. 478 U.S. at 677–78, 685. In Hazelwood, the

Court upheld a school’s right to “exercis[e] editorial control over the style and

content of student speech” in a school-sponsored newspaper when the student

engages in “expressive activities that students, parents, and members of the

public might reasonably perceive to bear the imprimatur of the school” and the

school officials’ “actions are reasonably related to legitimate pedagogical

concerns”. 484 U.S. at 262, 271, 273.

And, most recently in Morse, the Court considered whether a school

infringed a student’s First Amendment right of free speech when it disciplined

him for holding up a banner that stated “BONG HiTS 4 JESUS” at a school-

sponsored event. 551 U.S. at 397–98. The Court, through Justice Alito’s

controlling concurrence (joined by Justice Kennedy), held a school may

discipline a student for speech which poses a “grave and . . . unique threat to

the physical safety of students”, such as “advocating illegal drug use”. Id. at

425. (Justice Alito limited his “join[ing] the opinion of the Court on the

understanding that the opinion does not hold that the special characteristics

of the public schools necessarily justify any other speech restrictions”. Id. at

423.)

For these exceptions, schools are not required to prove the occurrence of

an actual disruption or one that reasonably could have been forecast.

Similarly, in Ponce v. Socorro Independent School District, our court extended

the Morse exception to certain threats of school violence. 508 F.3d 765, 771–

72 (5th Cir. 2007). In response to a diary brought to school containing

“terroristic threat[s]” mirroring recent mass school shootings, the school

suspended the student. Id. at 767. On appeal, our court upheld the suspension

as constitutional, extending Morse’s exception to speech “bearing the stamp of



. . . mass, systematic school-shootings” based on the “[l]ack of forewarning and

the frequent setting within schools [which] give mass shootings the unique

indicia that the concurring opinion [in Morse] found compelling with respect to

drug use”. Id. at 771.

In challenging the summary judgment, Bell claims the school board

violated his First Amendment free-speech rights by temporarily suspending

him and placing him in an alternative school for the six weeks remaining in

the grading period. In support, he contends: Tinker does not apply to off-

campus speech, such as his rap recording; and, even if it does, Tinker’s

“substantial disruption” test is not satisfied. For the reasons that follow, we

hold: Tinker applies to the off-campus speech at issue; there is no genuine

dispute of material fact precluding ruling, as a matter of law, that a school

official reasonably could find Bell’s rap recording threatened, harassed, and

intimidated the two teachers; and a substantial disruption reasonably could

have been forecast, as a matter of law.

1.

As our court explained in Morgan v. Swanson, student-speech claims are

evaluated “in light of the special characteristics of the school environment,

beginning by categorizing the student speech at issue”. 659 F.3d at 375

(footnotes and internal quotation marks omitted). We must thus decide

whether Bell’s speech falls under Tinker, or one of the Court’s above-described

exceptions. See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d

Cir. 2001) (employing a similar approach, noting “[s]peech falling outside of

. . . categories [such as those in Fraser and Hazelwood] is subject to Tinker’s

general rule”).

The parties do not assert, and the record does not show, that the school

board disciplined Bell based on the lewdness of his speech or its potential



perceived sponsorship by the school; therefore, Fraser and Hazelwood are not

directly on point. Bell’s speech likewise does not advocate illegal drug use or

portend a Columbine-like mass, systematic school-shooting. And, as Justice

Alito noted, when the type of violence threatened does not implicate “the

special features of the school environment”, Tinker’s “substantial disruption”

standard is the appropriate vehicle for analyzing such claims. Morse, 551 U.S.

at 425 (citing Tinker, 393 U.S. at 508–09) (“[I]n most cases, Tinker’s

‘substantial disruption’ standard permits school officials to step in before

actual violence erupts”.). Although threats against, and harassment and

intimidation of, teachers certainly pose a “grave . . . threat to the physical

safety” of members of the school community, id., violence forecast by a student

against a teacher does not reach the level of the above-described exceptions

necessitating divergence from Tinker’s general rule. We therefore analyze

Bell’s speech under Tinker. See Ponce, 508 F.3d at 771–72 & n.2 (“[B]ecause

[threats of violence against individual teachers] are relatively discrete in scope

and directed at adults, [they] do not amount to the heightened level of harm

that was the focus of both the majority opinion and Justice Alito’s concurring

opinion in Morse”.); see also Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch.

Dist., 494 F.3d 34, 38 (2d Cir. 2007) (analyzing threats of violence to individual

teachers under Tinker); Boim v. Fulton Cnty. Sch. Dist., 494 F.3d 978, 982–83

(11th Cir. 2007) (same).

2.

In claiming Tinker does not apply to off-campus speech, Bell asserts:

Tinker limits its holding to speech inside the “schoolhouse gate”; and each of

the Court’s subsequent decisions reinforces this understanding.

“Experience shows that schools can be places of special danger.” Morse,

551 U.S. at 424 (Alito, J., concurring). Over 45 years ago, when Tinker was



decided, the Internet, cellphones, smartphones, and digital social media did

not exist. The advent of these technologies and their sweeping adoption by

students present new and evolving challenges for school administrators,

confounding previously delineated boundaries of permissible regulations. See,

e.g., Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1064 (9th Cir. 2013)

(“With the advent of the Internet and in the wake of school shootings at

Columbine, Santee, Newtown and many others, school administrators face the

daunting task of evaluating potential threats of violence and keeping their

students safe without impinging on their constitutional rights.”). Students

now have the ability to disseminate instantaneously and communicate widely

from any location via the Internet. These communications, which may

reference events occurring, or to occur, at school, or be about members of the

school community, can likewise be accessed anywhere, by anyone, at any time.

Although, under other circumstances, such communications might be

protected speech under the First Amendment, off-campus threats, harassment,

and intimidation directed at teachers create a tension between a student’s free-

speech rights and a school official’s duty to maintain discipline and protect the

school community. These competing concerns, and differing standards applied

to off-campus speech across circuits, as discussed infra, have drawn into

question the scope of school officials’ authority. See Morse, 551 U.S. at 418

(Thomas, J., concurring) (lamenting the Court’s failure to “offer an explanation

of when [Tinker] operates and when it does not”, and noting: “I am afraid that

our jurisprudence now says that students have a right to speak in schools

except when they do not”).

Greatly affecting this landscape is the recent rise in incidents of violence

against school communities. See LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987

(9th Cir. 2001) (“[W]e live in a time when school violence is an unfortunate



reality that educators must confront on an all too frequent basis”.). School

administrators must be vigilant and take seriously any statements by students

resembling threats of violence, Ponce, 508 F.3d at 771, as well as harassment

and intimidation posted online and made away from campus. This now-

tragically common violence increases the importance of clarifying the school’s

authority to react to potential threats before violence erupts. See Morse, 551

U.S. at 408 (pressing that dangerous speech, such as speech advocating drug

use, is substantially different from the political speech at issue in Tinker,

because it presents a “far more serious and palpable” danger than an

“undifferentiated fear or apprehension of disturbance” or “a mere desire to

avoid the discomfort and unpleasantness that always accompany an unpopular

viewpoint” (citation and internal quotation marks omitted)); see also Ponce, 508

F.3d at 772 (“School administrators must be permitted to react quickly and

decisively to address a threat of physical violence . . . without worrying that

they will have to face years of litigation second-guessing their judgment as to

whether the threat posed a real risk of substantial disturbance.”).

In the light of these competing interests and increasing concerns

regarding school violence, it is necessary to establish the extent to which off-

campus student speech may be restricted without offending the First

Amendment. Our holding concerns the paramount need for school officials to

be able to react quickly and efficiently to protect students and faculty from

threats, intimidation, and harassment intentionally directed at the school

community. See, e.g., Morse, 551 U.S. at 425 (Alito, J., concurring) (“[D]ue to

the special features of the school environment, school officials must have

greater authority to intervene before speech leads to violence.”); Lowery v.

Euverard, 497 F.3d 584, 596 (6th Cir. 2007) (“School officials have an



affirmative duty to not only ameliorate the harmful effects of disruptions, but

to prevent them from happening in the first place.”).

a.

Despite Bell’s recognizing the wealth of precedent across numerous

circuits contrary to his position, he asserts: Tinker does not apply to speech

which originated, and was disseminated, off-campus, without the use of school

resources. Bell’s position is untenable; it fails to account for evolving

technological developments, and conflicts not only with our circuit’s precedent,

but with that of every other circuit to have decided this issue.

Since Tinker was decided in 1969, courts have been required to define its

scope. As discussed below, of the six circuits to have addressed whether Tinker

applies to off-campus speech, five, including our own, have held it does. (For

the other of the six circuits (the third circuit), there is an intra-circuit split.

See Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 219–20 (3d Cir. 2011) (en

banc) (Jordan, J., concurring) (discussing that Tinker’s applicability to off-

campus speech remains unresolved in the third circuit); see also J.S. ex rel.

Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 931 & n.8 (3d Cir. 2011) (en

banc) (divided court assuming, without deciding, that the Tinker substantial-

disruption test applies to online speech harassing a school administrator).)

The remainder of the circuits (first, sixth, seventh, tenth, eleventh, D.C.) do

not appear to have addressed this issue.

Although the Supreme Court has not expressly ruled on this issue, our

court, 43 years ago, applied Tinker to analyze whether a school board’s actions

were constitutional in disciplining students based on their off-campus speech.

E.g., Shanley, 462 F.2d at 970 (“When the Burnside/Tinker standards are

applied to this case . . . ”.); see also Sullivan v. Hous. Indep. Sch. Dist., 475 F.2d

1071, 1072 (5th Cir. 1973) (“This case arises from the unauthorized



distribution of an underground newspaper near a high school campus, and

presents the now-familiar clash between claims of First Amendment protection

on the one hand and the interests of school boards in maintaining an

atmosphere in the public schools conducive to learning, on the other.”

(emphasis added)); Wisniewski, 494 F.3d at 39 (interpreting Sullivan as

applying Tinker to off-campus speech); Porter v. Ascension Parish Sch. Bd., 393

F.3d 608, 615 n.22, 619 n.40 (5th Cir. 2004) (same).

In Shanley, students distributed newspapers containing articles they

authored “during out-of-school hours, and without using any materials or

facilities owned or operated by the school system”, “near but outside the school

premises on the sidewalk of an adjoining street, separated from the school by

a parking lot”. 462 F.2d at 964. In concluding the students’ speech was

protected, our court ruled: “[T]he activity punished here does not even

approach the ‘material and substantial’ disruption . . . either in fact or in

reasonable forecast [and] [a]s a factual matter . . . there were no disturbances

of any sort, on or off campus, related to the distribution of the [newspaper]”.

Id. at 970.

Further, as noted supra, four other circuits have held that, under certain

circumstances, Tinker applies to speech which originated, and was

disseminated, off-campus. See, e.g., Wynar, 728 F.3d at 1069; D.J.M. ex rel.

D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 766–67 (8th Cir. 2011);

Kowalski v. Berkeley Cnty. Schs., 652 F.3d 565, 573–74 (4th Cir. 2011);

Doninger v. Niehoff, 527 F.3d 41, 48–50 (2d Cir. 2008). Therefore, based on

our court’s precedent and guided by that of our sister circuits, Tinker applies

to off-campus speech in certain situations.



b.

Therefore, the next question is under what circumstances may off-

campus speech be restricted. Our court’s precedent is less developed in this

regard. For the reasons that follow, and in the light of the summary-judgment

record, we need not adopt a specific rule: rather, Bell’s admittedly

intentionally directing at the school community his rap recording containing

threats to, and harassment and intimidation of, two teachers permits Tinker’s

application in this instance.

i.

In 1972 in Shanley, our court expressly declined to adopt a rule holding

a school’s attempt to regulate off-campus speech under Tinker was per se

unconstitutional. 462 F.2d at 974. Our court explained: “[E]ach situation

involving expression and discipline will create its own problems of

reasonableness, and for that reason we do not endeavor here to erect any

immovable rules, but only to sketch guidelines”. Id. Likewise, in 1973 in

Sullivan, our court considered Tinker, but did not address any parameters for

its application to off-campus speech. 475 F.2d at 1076–77.

Our court’s far more recent, 2004 opinion in Porter, however, provides

valuable insight in this regard. There, the school expelled a student after his

brother brought to school a sketchpad containing a two-year-old drawing of the

school’s being attacked by armed personnel. 393 F.3d at 611. The depiction,

albeit violent in nature, “was completed [at] home, stored for two years, and

never intended by [the creator of the drawing] to be brought to campus”. Id. at

615 (emphasis added). After concluding Tinker applied to the school’s

regulations, our court held the speech was protected because the student never

intended for the drawing to reach the school, describing its introduction to the

school community as “accidental and unintentional”. Id. at 618, 620 (“Because



[the student’s] drawing was composed off-campus, displayed only to members

of his own household, stored off-campus, and not purposefully taken by him to

[school] or publicized in a way certain to result in its appearance at [school],

we have found that the drawing is protected by the First Amendment”.). Of

importance for the issue at hand, and after describing precedent from our and

other circuits’ applying Tinker to off-campus speech, our court stated its

holding was “not in conflict with this body of case law” regarding the First

Amendment and off-campus student speech because the drawing’s being

“composed off-campus and remain[ing] off-campus for two years until it was

unintentionally taken to school by his younger brother takes the present case

outside the scope of these precedents”. Id. at 615 n.22 (emphasis added).

Porter instructs that a speaker’s intent matters when determining

whether the off-campus speech being addressed is subject to Tinker. A

speaker’s intention that his speech reach the school community, buttressed by

his actions in bringing about that consequence, supports applying Tinker’s

school-speech standard to that speech.

In addition, those courts to have considered the circumstances under

which Tinker applies to off-campus speech have advocated varied approaches.

E.g., Wynar, 728 F.3d at 1069 (holding that, regardless of the location of the

speech, “when faced with an identifiable threat of school violence [(threats

communicated online via MySpace messages)], schools may take disciplinary

action in response to off-campus speech that meets the requirements of

Tinker”); Snyder, 650 F.3d at 940 (Smith, J., concurring) (noting that any

standard adopted “cannot turn solely on where the speaker was sitting when

the speech was originally uttered [because s]uch a standard would fail to

accommodate the somewhat ‘everywhere at once’ nature of the [I]nternet”, and

advocating allowing schools to discipline off-campus speech “[r]egardless of its



place of origin” so long as that speech was “intentionally directed towards a

school”); Kowalski, 652 F.3d at 573 (applying Tinker when a “sufficiently

strong” nexus exists between the student’s speech and the school’s pedagogical

interests “to justify the action taken by school officials in carrying out their role

as the trustees of the student body’s well-being”); D.J.M., 647 F.3d at 766

(applying Tinker because “it was reasonably foreseeable that [the student’s]

threats about shooting specific students in school would be brought to the

attention of school authorities and create a risk of substantial disruption

within the school environment”); Doninger, 527 F.3d at 48 (holding Tinker

applies to speech originating off-campus if it “would foreseeably create a risk

of substantial disruption within the school environment, at least when it was

similarly foreseeable that the off-campus expression might also reach campus”

(internal quotation marks omitted)).

The pervasive and omnipresent nature of the Internet has obfuscated

the on-campus/off-campus distinction advocated by Bell, “mak[ing] any effort

to trace First Amendment boundaries along the physical boundaries of a school

campus a recipe for serious problems in our public schools”. Layshock, 650

F.3d at 220–21 (Jordan, J., concurring). Accordingly, in the light of our court’s

precedent, we hold Tinker governs our analysis, as in this instance, when a

student intentionally directs at the school community speech reasonably

understood by school officials to threaten, harass, and intimidate a teacher,

even when such speech originated, and was disseminated, off-campus without

the use of school resources.

This holding is consistent with our circuit’s precedent in Shanley and

Sullivan, that of our sister circuits, and our reasoning in Porter. Further, in

holding Tinker applies to the off-campus speech in this instance, because such

determinations are heavily influenced by the facts in each matter, we decline:



to adopt any rigid standard in this instance; or to adopt or reject approaches

advocated by other circuits.

ii.

Turning to the matter before us, there is no genuine dispute of material

fact that Bell intended his rap recording to reach the school community. He

admitted during the disciplinary-committee hearing that one of the purposes

for producing the recording was to “increase awareness of the [alleged

misconduct]” and that, by posting the rap recording on Facebook and YouTube,

he knew people were “gonna listen to it, somebody’s gonna listen to it”,

remarking that “students all have Facebook”. In short, Bell produced and

disseminated the rap recording knowing students, and hoping administrators,

would listen to it.

Further, regardless of whether Bell’s statements in the rap recording

qualify as “true threats”, as discussed in part II.B., they constitute threats,

harassment, and intimidation, as a layperson would understand the terms.

The Oxford English Dictionary defines: “threaten” as “to declare (usually

conditionally) one’s intention of inflicting injury upon” another, 17 Oxford

English Dictionary 998 (2d ed. 1989); “harass” as “[t]o wear out, tire out, or

exhaust with fatigue, care, [or] trouble”, 6 id. at 1100 (emphasis in original);

and “intimidate” as “[t]o render timid, inspire with fear; [or] to force to or deter

from some action by threats or violence”, 8 id. at 7–8. See also Black’s Law

Dictionary 1708 (10th ed. 2014) (defining “threat” as “[a] communicated intent

to inflict harm or loss on another or on another’s property”); id. at 831 (defining

“harassment” as “[w]ords, conduct, or action . . . that, being directed at a

specific person, annoys, alarms, or causes substantial emotional distress to

that person and serves no legitimate purpose”); Elonis v. United States, 135 S.

Ct. 2001, 2011–12 (2015) (explaining that a “threat” can have different



definitions based on context (for example, the difference between its use in

criminal statutes and its being protected speech under the First Amendment)).

A reasonable understanding of Bell’s statements satisfies these

definitions; they: threatened violence against the two coaches, describing the

injury to be inflicted (putting the pistol down their mouths and pulling the

trigger, and “capping” them), described the specific weapon (a “rueger” [sic],

which, as discussed supra, is a type of firearm), and encouraged others to

engage in this action; and harassed and intimidated the coaches by forecasting

the aforementioned violence, warning them to “watch [their] back[s]” and that

they would “get no mercy” when such actions were taken. Accordingly, as

further discussed infra, there is no genuine dispute of material fact that Bell

threatened, harassed, and intimidated the coaches by intentionally directing

his rap recording at the school community, thereby subjecting his speech to

Tinker.

3.

Having held Tinker applies in this instance, the next question is whether

Bell’s recording either caused an actual disruption or reasonably could be

forecast to cause one. Taking the school board’s decision into account, and the

deference we must accord it, see, e.g., Wood v. Strickland, 420 U.S. 308, 326

(1975), overruled in part on other grounds, Harlow v. Fitzgerald, 457 U.S. 800

(1982); Shanley, 462 F.2d at 975; Callahan v. Price, 505 F.2d 83, 87 (5th Cir.

1974), this question becomes whether a genuine dispute of material fact exists

regarding the reasonableness of finding Bell’s rap recording threatening,

harassing, and intimidating; and, if no genuine dispute precludes that finding,

whether such language, as a matter of law, reasonably could have been forecast

to cause a substantial disruption.



a.

As noted by our court in Shanley, “in deference to the judgment of the

school boards, we refer ad hoc resolution of . . . issues [such as this one] to the

neutral corner of ‘reasonableness’”. 462 F.2d at 971; see also id. at 975 (“[T]he

balancing of expression and discipline is an exercise in judgment for school

administrations and school boards, subject only to the constitutional

requirement of reasonableness under the circumstances”.). For the reasons

discussed supra, there is no genuine dispute of material fact that the school

board’s finding the rap recording threatened, harassed, and intimidated the

two coaches was objectively reasonable.

b.

Next, we consider whether the school board’s disciplinary action against

Bell, based on its finding he threatened, harassed, and intimidated two

coaches, satisfies Tinker. Arguably, a student’s threatening, harassing, and

intimidating a teacher inherently portends a substantial disruption, making

feasible a per se rule in that regard. We need not decide that question because,

in the light of this summary-judgment record, and for the reasons that follow,

Bell’s conduct reasonably could have been forecast to cause a substantial

disruption.

i.

As discussed supra, Tinker allows a school board to discipline a student

for speech that either causes a substantial disruption or reasonably is forecast

to cause one. 393 U.S. at 514. The Tinker test is satisfied when: an actual

disruption occurs; or the record contains facts “which might reasonably have

led school authorities to forecast substantial disruption of or material

interference with school activities”. Id.



“Tinker requires a specific and significant fear of disruption, not just

some remote apprehension of disturbance.” Saxe, 240 F.3d at 211. “School

officials must be able to show that their actions were caused by something more

than a mere desire to avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint.” A.M. ex rel. McAllum v. Cash, 585 F.3d

214, 221 (5th Cir. 2009) (alterations and internal quotation marks omitted).

“Officials must base their decisions on fact, not intuition”, id. at 221–22

(internal quotation marks omitted); and those decisions are entitled to

deference, Shanley, 462 F.2d at 967 (“That courts should not interfere with the

day-to-day operations of schools is a platitudinous but eminently sound maxim

which this court has reaffirmed on many occasions.”). See also Wood, 420 U.S.

at 326 (“It is not the role of the federal courts to set aside decisions of school

administrators which the court may view as lacking a basis in wisdom or

compassion.”).

As our court has held: “While school officials must offer facts to support

their proscription of student speech, this is not a difficult burden, and their

decisions will govern if they are within the range where reasonable minds will

differ”. Cash, 585 F.3d at 222 (emphasis added) (internal citations and

quotation marks omitted). Accordingly, school authorities are not required

expressly to forecast a “substantial or material disruption”; rather, courts

determine the possibility of a reasonable forecast based on the facts in the

record. See, e.g., id. at 217, 222; see also Tinker, 393 U.S. at 514 (“[T]he record

does not demonstrate any facts which might reasonably have led school

authorities to forecast substantial disruption of or material interference with

school activities, and no disturbances or disorders on the school premises in

fact occurred”. (emphasis added)).



Factors considered by other courts in determining, pursuant to Tinker,

the substantiality vel non of an actual disruption, and the objective

reasonableness vel non of a forecasted substantial disruption, include: the

nature and content of the speech, the objective and subjective seriousness of

the speech, and the severity of the possible consequences should the speaker

take action, e.g., Wynar, 728 F.3d at 1070–71; the relationship of the speech to

the school, the intent of the speaker to disseminate, or keep private, the speech,

and the nature, and severity, of the school’s response in disciplining the

student, e.g., Doninger, 527 F.3d at 50–52; whether the speaker expressly

identified an educator or student by name or reference, and past incidents

arising out of similar speech, e.g., Kowalski, 652 F.3d at 574; the manner in

which the speech reached the school community, e.g., Boim, 494 F.3d at 985;

the intent of the school in disciplining the student, Snyder, 650 F.3d at 926,

929 (majority opinion), 951 (Fisher, J., dissenting); and the occurrence of other

in-school disturbances, including administrative disturbances involving the

speaker, such as “[s]chool officials ha[ving] to spend considerable time dealing

with these concerns and ensuring that appropriate safety measures were in

place”, D.J.M., 647 F.3d at 766, brought about “because of the need to manage”

concerns over the speech, Doninger, 527 F.3d at 51.

ii.

Applying this precedent to the summary-judgment record at hand, and

for the reasons that follow, a substantial disruption reasonably could have been

forecast as a matter of law. Viewing the evidence in the requisite light most

favorable to Bell, including his assertions that he wanted only to raise

awareness of alleged misconduct by two teachers (Bell admitted at the

disciplinary-committee hearing that his recording was meant to “increase

awareness of the situation” and that he was “foreshadowing something that



might happen” (emphasis added)), the manner in which he voiced his concern—

with threatening, intimidating, and harassing language—must be taken

seriously by school officials, and reasonably could be forecast by them to cause

a substantial disruption.

The speech pertained directly to events occurring at school, identified the

two teachers by name, and was understood by one to threaten his safety and

by neutral, third parties as threatening. (Bell agreed at the disciplinary-

committee hearing that “certain statements” were made to his mother “outside

the school setting” that “‘put a pistol down your mouth’[,] that is a direct

threat”.) The possible consequences were grave—serious injury to, including

the possible death of, two teachers. Along that line, Bell admitted he intended

the speech to be public and to reach members of the school community, which

is further evidenced by his posting the recording to Facebook and YouTube.

As noted, the school district’s Discipline – Administrative Policy lists

“[h]arassment, intimidation, or threatening other students and/or teachers” as

a severe disruption. Although we may not rely on ipse dixit in evaluating the

school board’s actions, Shanley, 462 F.2d at 970, the school-district’s policy

demonstrates an awareness of Tinker’s substantial-disruption standard, and

the policy’s violation can be used as evidence supporting the reasonable

forecast of a future substantial disruption. See, e.g., Morse, 551 U.S. at 408–

10 (relying on, inter alia, the student’s violation of established school policy in

holding the school board did not violate the student’s First Amendment right);

Fraser, 478 U.S. at 678, 686 (noting that the “[t]he school disciplinary rule

proscribing ‘obscene’ language and the prespeech admonitions of teachers gave

adequate warning to [the student] that his lewd speech could subject him to

sanctions”).



Further, even after finding Bell threatened, intimidated, and harassed

two teachers, the school board’s response was measured—temporarily

suspending Bell and placing him in an alternative-education program for the

remainder of the nine-week grading term (about six weeks). The

reasonableness of, and amount of care given to, this decision is reinforced by

the school board’s finding, differently from the disciplinary committee’s, that

Bell’s statements also constituted threats.

And finally, numerous, recent examples of school violence exist in which

students have signaled potential violence through speech, writings, or actions,

and then carried out violence against school communities, after school

administrators and parents failed to properly identify warning signs. See, e.g.,

Report of the Virginia Tech Review Panel, Mass Shootings at Virginia Tech

April 16, 2007, 52 (August 2007), available at

https://governor.virginia.gov/media/3772/fullreport.pdf (section entitled

“Missing the Red Flags”); see also Ponce, 508 F.3d at 771 (“[T]he difficulty of

identifying warning signs in the various instances of school shootings across

the country is intrinsic to the harm itself”.); LaVine, 257 F.3d at 987 (“After

Columbine, Thurston, Santee and other school shootings, questions have been

asked how teachers or administrators could have missed telltale ‘warning

signs,’ why something was not done earlier and what should be done to prevent

such tragedies from happening again.”).

In determining objective reasonableness vel non for forecasting a

substantial disruption, the summary-judgment record and numerous related

factors must be considered against the backdrop of the mission of schools: to

educate. It goes without saying that a teacher, which includes a coach, is the

cornerstone of education. Without teaching, there can be little, if any, learning.



Without learning, there can be little, if any, education. Without education,

there can be little, if any, civilization.

It equally goes without saying that threatening, harassing, and

intimidating a teacher impedes, if not destroys, the ability to teach; it impedes,

if not destroys, the ability to educate. It disrupts, if not destroys, the discipline

necessary for an environment in which education can take place. In addition,

it encourages and incites other students to engage in similar disruptive

conduct. Moreover, it can even cause a teacher to leave that profession. In

sum, it disrupts, if not destroys, the very mission for which schools exist—to

educate.

If there is to be education, such conduct cannot be permitted. In that

regard, the real tragedy in this instance is that a high-school student thought

he could, with impunity, direct speech at the school community which

threatens, harasses, and intimidates teachers and, as a result, objected to

being disciplined.

Put succinctly, “with near-constant student access to social networking

sites on and off campus, when offensive and malicious speech is directed at

school officials and disseminated online to the student body, it is reasonable to

anticipate an impact on the classroom environment”. Snyder, 650 F.3d at 951–

52 (Fisher, J., dissenting). As stated, the school board reasonably could have

forecast a substantial disruption at school, based on the threatening,

intimidating, and harassing language in Bell’s rap recording.

B.

In considering Bell’s First Amendment claim, and our having affirmed

summary judgment for the school board under Tinker, it is unnecessary to

decide whether Bell’s speech also constitutes a “true threat” under Watts v.

United States, 394 U.S. 705 (1969) (holding hyperbolic threats on the



President’s life are not “true threats”). See Elonis, 135 S. Ct. at 2012 (declining

to address the First Amendment question (whether the speech was a “true

threat” not protected by that amendment) after resolving the case on other

grounds).

III.

For the foregoing reasons, the judgment is AFFIRMED.



E. GRADY JOLLY, specially concurring:

In determining the contours of constitutionally permissible school

discipline, older cases are relevant for block building, but only block building,

as we decide what speech schools may discipline under the First Amendment.

In Tinker, there was no threat to kill a teacher, no threat of violence, and no

lewd or slanderous comments regarding a teacher. Tinker also did not address

the intersection between on-campus speech and off-campus speech. When

Tinker refers to a disruption, it is saying that student ideas may be expressed

on campus unless they are so controversial that the expression creates a

disruption. Those principles are controlling where the facts fit, but Tinker’s

admonitions—or the admonitions in various precedents—are not equally

forceful in every case. The same can be said of Morse. It is perhaps more

applicable here than Tinker, because it speaks in terms of physical and moral

danger to students. Morse makes clear that such danger does not require proof

of disruptive effects that the speech may cause, as would be required in the

case of mere expression of non-lethal statements.

It is true that in a footnote in Ponce we indicated that individual threats

of violence are more appropriately analyzed in the light of Tinker as opposed

to threats of mass violence, which we analyzed under Morse. These are

evolving principles, however, and we now have before us a different case from

Tinker, Morse, Ponce, or Porter. Tinker may well be a relevant precedent here.

But that does not mean that all aspects of a political speech case must be

slavishly applied to a case of threats to kill teachers.

We should apply reasonable common sense in deciding these continually

arising school speech and discipline cases, as we would in any case dealing with

the evolving common law, which takes into account the technological and

societal environs of the times. When Tinker was written in 1969, the use of



the Internet as a medium for student speech was not within the Court’s mind.

It is also true that this issue was not in the forefront of the Court’s mind when

Porter was written in 2004, or even when Morse and Ponce were written. Ever

since Morse, the use, the extent and the effect of the online speech seem to have

multiplied geometrically.

Judges should also view student speech in the further context of public

education today—at a time when many schools suffer from poor performance,

when disciplinary problems are at their highest, and when schools are, in many

ways, at their most ineffective point. Judges should take into account the effect

the courts have had on these problems in school discipline. Increasing judicial

oversight of schools has created unforeseen consequences, for teachers and for

schools as much as for students. Students feel constraints on conduct and

personal speech to be more and more permissive. Teachers will decide not to

discipline students, given the likelihood of protracted litigation and its

pressures on the time and person of those who work hard to keep up with the

increasing demands placed on them as teachers. Schools will not take on the

risk of huge litigation costs when they could use these resources on school

lunches, textbooks, or other necessary school resources to educate children, all

of which are sorely lacking in so many, many instances.

Judges can help to address these concerns by speaking clearly, succinctly

and unequivocally. I would decide this case in the simplest way, consonant

with our cases and the cases in other circuits, by saying as little as possible

and holding:

Student speech is unprotected by the First

Amendment and is subject to school discipline when that

speech contains an actual threat to kill or physically harm

personnel and/or students of the school; which actual



threat is connected to the school environment; and which

actual threat is communicated to the school, or its students,

or its personnel.

With these comments, I join Judge Barksdale’s opinion.



JENNIFER WALKER ELROD, Circuit Judge, joined by JONES, Circuit

Judge, concurring:

I fully concur in the careful, well-reasoned majority opinion, because

Bell’s rap was directed to the school and contained threats of physical violence.

See Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1069 (9th Cir. 2013)

(declining to consider threshold tests from other circuits and holding only that

schools may discipline off-campus student speech under the Tinker standard

“when faced with an identifiable threat of school violence”); see also Morse v.

Frederick, 551 U.S. 393, 424 (2007) (Alito, J., concurring) (remarking that “any

argument for altering the usual free speech rules in the public schools . . .

must . . . be based on some special characteristic of the school setting,” and

recognizing only one such special characteristic: “threat[s] to the physical

safety of students”); Ponce v. Socorro Ind. Sch. Dist., 508 F.3d 765, 770–72 (5th

Cir. 2007) (interpreting Morse to allow punishment of off-campus speech

threatening a mass shooting).

Most importantly, nothing in the majority opinion makes Tinker

applicable off campus to non-threatening political or religious speech, even

though some school administrators might consider such speech offensive,

harassing, or disruptive. See Morse, 551 U.S. at 403, 409 (majority opinion)

(noting that the student speech in Morse did not “convey[] any sort of political

or religious message” and recognizing that while “much political and religious

speech might be perceived as offensive to some,” such speech “is at the core of

what the First Amendment is designed to protect”) (internal quotation marks

omitted); id. at 422–23, 424 (Alito, J., concurring) (emphasizing the First

Amendment’s protection of speech that comments on political or social issues

and observing that “[i]t is . . . wrong to treat public school officials, for purposes



relevant to the First Amendment, as if they were private, nongovernmental

actors standing in loco parentis”).

Indeed, as Judge D. Brooks Smith has cautioned, because Tinker allows

the suppression of student speech (even political speech) based on its

consequences rather than its content, broad off-campus application of Tinker

“would create a precedent with ominous implications. Doing so would empower

schools to regulate students’ expressive activity no matter where it takes place,

when it occurs, or what subject matter it involves—so long as it causes a

substantial disruption at school.” See J.S. ex rel. Snyder v. Blue Mountain Sch.

Dist., 650 F.3d 915, 939 (3d Cir. 2011) (en banc) (Smith, J., concurring) (five-

judge concurrence opining that Tinker does not apply off campus). I agree with

my learned colleague on the Third Circuit that the First Amendment does not,

for example, allow a public school to punish a student for “writ[ing] a blog entry

defending gay marriage” from his home computer, even if the blog entry causes

a substantial disruption at the school. Id. (Smith, J., concurring).

By my read, the majority opinion avoids such “ominous implications” and

does not subject a broad swath of off-campus student expression to Tinker.

Rather, it quite sensibly decides only the case before it, applying Tinker to

Bell’s rap, which was intentionally directed toward the school and contained

threats of physical violence. Because this cautious approach does not place

public school officials in loco parentis or confer upon them a broad power to

discipline non-threatening off-campus speech, I concur in full.



GREGG COSTA, Circuit Judge, joined by OWEN and HIGGINSON, Circuit

Judges, concurring:

This case involves two serious problems that arise all too frequently in

today’s classrooms: violence and sexual harassment. Judge Dennis’s dissent

points out that the harassment of female students is a matter of vital public

concern that Bell’s song sought to expose. The problem for Bell is that his

song—with its graphic discussion of violence against the coaches—goes well

beyond blowing the whistle on the alleged harassment.

Judge Dennis’s dissent contends that these whistleblowing aspects of the

song nonetheless entitle the speech to “special protection” under the First

Amendment. Dissent at 1, 12. It treats this argument as a separate basis for

ruling in Bell’s favor. But fitting this case within Snyder v. Phelps, public

employee speech cases like Pickering, and the litany of other cited cases

assumes that Tinker is not implicated. Tinker, of course, involved speech on

not just a matter of public concern, but the public concern of its day—the war

in Vietnam. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504

(1969). Yet the Court still balanced the value of that speech against its impact

on the learning environment. See id. at 509. That disruption analysis may

well have come out differently had the Tinkers combined their armband

protest with talk of violence. Identifying some aspect of Bell’s song that

addresses a matter of public concern therefore is not enough to elevate it above

the Tinker framework unless Tinker does not apply to this type of off-campus

speech (in which case the speech would enjoy First Amendment protection from

school discipline so long as it constitutes any form of protected speech, not just

the “highest rung”).

Whichever First Amendment doctrine one tries to latch onto, the

inescapable question is thus whether Tinker’s balancing approach governs “off-



campus” student speech that is directed at the school community. For the

reasons discussed in the majority opinion, along with the views expressed by

every other circuit that has taken a position on this issue, I agree that it does,

at least when the speech is threatening, harassing, and intimidating as it is

here.

Broader questions raised by off-campus speech will be left for another

day. That day is coming soon, however, and this court or the higher one will

need to provide clear guidance for students, teachers, and school

administrators that balances students’ First Amendment rights that Tinker

rightly recognized with the vital need to foster a school environment conducive

to learning. That task will not be easy in light of the pervasive use of social

media among students and the disruptive effect on learning that such speech

can have when it is directed at fellow students and educators. Indeed,

although Judge Dennis’s dissent extols the aspects of Bell’s song that sought

to combat sexual harassment, the blanket rule it advocates—one that would

deprive schools of any authority to discipline students for off-campus speech

published on social media no matter how much it disrupts the learning

environment—would allow sexual harassment and ferocious cyberbullying

that affect our classrooms to go unchecked. See Morrow v. Balaski, 719 F.3d

160, 164 (3d Cir. 2013) (describing multiple cyberbullying incidents in which

students were threatened by phone and on MySpace by another student);

S.J.W. ex rel. Wilson v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 773 (8th Cir.

2012) (explaining that students’ posts on a blog they created “contained a

variety of offensive and racist comments as well as sexually explicit and

degrading comments about particular female classmates, whom they identified

by name”); Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 568 (4th Cir. 2011)

(detailing online bullying incident in which high school students created



webpage called “Students Against Shay’s Herpes” in reference to another high

school student).

With these additional observations, I join the majority opinion.



JAMES L. DENNIS, Circuit Judge, with whom GRAVES, Circuit Judge, joins

in full, and with whom PRADO, Circuit Judge, joins except as to Parts I and

II. B., dissenting:

Although mischaracterizing itself as “narrow” in scope, the en banc

majority opinion broadly proclaims that a public school board is

constitutionally empowered to punish a student whistleblower for his purely

off-campus Internet speech publicizing a matter of public concern. As if to

enforce the adage that “children should be seen and not heard,” the majority

opinion holds that the Itawamba County School Board did not violate the First

Amendment when it suspended high school senior Taylor Bell for composing

and posting a rap song on the Internet using his home computer during non-

school hours, which criticized two male teachers for their repeated sexual

harassment of minor female students. In my view, the majority opinion

commits serious constitutional and summary-judgment procedural errors

because: (1) Bell is entitled to summary judgment because his off-campus rap

song was specially protected speech on a matter of public concern; (2) the

School Board was not authorized by Tinker v. Des Moines Independent

Community School District, 393 U.S. 503 (1969), to censor students’ off-campus

online speech; and (3) even assuming arguendo that Tinker granted the School

Board power to censor such speech, the School Board was not entitled to

summary judgment under Tinker, because the evidence, viewed in the light

favorable to the non-movant, Bell, does not support the conclusion that Bell’s

speech caused a substantial disruption of school activities or justified a

reasonable forecast of such a disruption by school officials. The majority

opinion thereby denigrates and undermines not only Bell’s First Amendment

right to engage in off-campus online criticism on matters of public concern but

also the rights of untold numbers of other public school students in our



jurisdiction to scrutinize the world around them and likewise express their off-

campus online criticism on matters of public concern. In doing so, the majority

opinion obliterates the historically significant distinction between the

household and the schoolyard by permitting a school policy to supplant

parental authority over the propriety of a child’s expressive activities on the

Internet outside of school, expanding schools’ censorial authority from the

campus and the teacher’s classroom to the home and the child’s bedroom.

As detailed herein, the majority opinion commits a number of

fundamental errors that necessitate highlighting lest readers be misinformed

by its version of the relevant facts and law. First and foremost, the majority

opinion erroneously fails to acknowledge that Bell’s rap song constitutes

speech on “a matter of public concern” and therefore “occupies the highest rung

of the hierarchy of First Amendment values.” See Snyder v. Phelps, 562 U.S.

443, 452 (2011) (internal quotation marks and citation omitted). Instead, by

narrowly focusing its analysis on a few, plainly rhetorical lyrics in Bell’s song,

the majority opinion wholly glosses over the urgent social issue that Bell’s song

lays bare and thus flouts Supreme Court precedent requiring us to evaluate

whether “the overall thrust and dominant theme of [Bell’s song] spoke to

broader public issues”—which it did. See id. at 454.

Second, in drastically expanding the scope of schools’ authority to

regulate students’ off-campus speech, the majority opinion disregards Supreme

Court precedent establishing that minors are entitled to “significant” First

Amendment protection, including the right to engage in speech about violence

or depicting violence, and that the government does not enjoy any “free-floating

power to restrict the ideas to which children may be exposed.” See Brown v.

Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2735–36 (2011). Similarly, the

majority opinion also altogether fails to consider Supreme Court precedents



that substantially restrict the government’s ability to regulate Internet speech,

Reno v. American Civil Liberties Union, 521 U.S. 844, 868–70 (1997), and the

extent to which the majority opinion’s vague framework fails to provide

constitutionally adequate notice of when student speech crosses the line

between permissible and punishable off-campus expression, see id. at 871–72;

accord Brown, 131 S. Ct. at 2744–46 (Alito, J., concurring). Further, by

deriving its rule from a school policy that focuses on whether a layperson might

view Bell’s speech as “threatening,” “harassing,” or “intimidating,” the

majority opinion ignores First Amendment precedents demanding that the

government prove more than mere negligence before imposing penalties for so-

called “threatening” speech. See Virginia v. Black, 538 U.S. 343, 359 (2003);

N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 904, 928–29 (1982).

Third, by holding that the Tinker framework applies to off-campus

speech like Bell’s, the majority opinion simply ignores that Tinker’s holding

and its sui generis “substantial-disruption” framework are expressly grounded

in “the special characteristics of the school environment,” Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), and the need to defer to

school officials’ authority “to prescribe and control conduct in the schools,” id.

at 507 (emphasis added), whereas Bell’s rap song was recorded and released

entirely outside the school environment. The Court’s post-Tinker precedents

make clear this critical distinction. See, e.g., Morse v. Frederick, 551 U.S. 393,

422 (2007) (Alito, J., concurring) (noting that Tinker allows schools to regulate

“in-school student speech . . . in a way that would not be constitutional in other

settings”). In this regard, the majority opinion also fails to account for the vital

fact that the Tinker framework is far too indeterminate of a standard to

adequately protect the First Amendment right of students, like Bell, to engage

in expressive activities outside of school, as well as their parents’ constitutional



right to direct their children’s upbringing and the First Amendment right of

adults and children alike to receive students’ speech. In other words, the

majority opinion allows schools to police their students’ Internet expression

anytime and anywhere—an unprecedented and unnecessary intrusion on

students’ rights.

Fourth and finally, the majority opinion also errs in its very application

of the Tinker framework. As detailed in the panel majority’s opinion, the

summary-judgment evidence simply does not support the conclusion, as

required by Tinker, that Bell’s song substantially disrupted school activities or

that school officials reasonably could have forecasted that it would do so. In

reaching the opposite conclusion, the majority opinion not only fails to view the

summary-judgment evidence in the light most favorable to the non-movant,

Bell, accord Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014), but also dilutes the

Tinker “substantial-disruption” framework into an analytic nullity.

Even in the most repressive of dictatorships, the citizenry is “free” to

praise their leaders and other people of power or to espouse views consonant

with those of their leaders. “Freedom of speech” is thus a hollow guarantee if

it permits only praise or state-sponsored propaganda. Freedom of speech

exists exactly to protect those who would criticize, passionately and

vociferously, the actions of persons in power. But that freedom is denied to

Bell by the majority opinion because the persons whose conduct he dared to

criticize were school teachers. If left uncorrected, the majority opinion

inevitably will encourage school officials to silence student speakers, like

Taylor Bell, solely because they disagree with the content and form of their

speech, particularly when such off-campus speech criticizes school personnel.

Such a precedent thereby clearly contravenes the basic principle that, “[i]n our

system, students may not be regarded as closed-circuit recipients of only that



which the States chooses to communicate. They may not be confined to

expression of those sentiments that are officially approved.” Tinker, 393 U.S.

at 511. Today, however, the majority opinion exempts the children of Texas,

Louisiana, and Mississippi from this long-established constitutional

safeguard. Because the majority opinion’s undue deference to a public school

board’s assertion of authority to censor the speech of students while not within

its custody impinges the very core of our Constitution’s fundamental right to

free speech, I respectfully but emphatically dissent.

I. The en banc majority opinion completely ignores Bell’s argument that

the School Board violated his First Amendment rights in punishing him for his

rap song, which he contends was protected speech on “a matter of public

concern.” Although Bell strenuously made his “speech on a matter of public

concern” argument at every opportunity, including at the en banc oral

argument, the en banc majority opinion fails to address this critical point.

Instead, the majority opinion transforms the Itawamba County School Board

disciplinary policy into an unprecedented rule of constitutional law that

effectively permits school officials across our Circuit to punish a student’s

protest of teacher misconduct regardless of when or where the speech occurs

and regardless of whether the student speaker is, at the time of the speech, an

adult or a minor fully within the custody and control of his or her parents. I

respectfully but strongly disagree with the majority opinion’s silent rejection

of Bell’s argument, not only because Bell’s argument is meritorious, but also

because the opinion’s sub silentio decision of the issue presented has led it into

several serious and unfortunate constitutional errors.

Speech on “matters of public concern” is “at the heart of the First

Amendment’s protection.” Snyder v. Phelps, 562 U.S. 443, 451–52 (2011)



(internal quotation marks and citation omitted). “The First Amendment

reflects ‘a profound national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open.’” Id. at 452 (quoting New

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). “That is because ‘speech

concerning public affairs is more than self-expression; it is the essence of self-

government.’” Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964)).

“Accordingly, ‘speech on public issues occupies the highest rung of the

hierarchy of First Amendment values, and is entitled to special protection.’”

Id. (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).

Although the Supreme Court has noted that “the boundaries of the public

concern test are not well defined,” San Diego v. Roe, 543 U.S. 77, 83 (2004) (per

curiam), it has “articulated some guiding principles, principles that accord

broad protection to speech to ensure that courts themselves do not become

inadvertent censors,” Snyder, 562 U.S. at 452. “Speech deals with matters of

public concern when it can be fairly considered as relating to any matter of

political, social, or other concern to the community, or when it is a subject of

legitimate news interest; that is, a subject of general interest and of value and

concern to the public.” Id. at 453 (internal quotation marks and citations

omitted). “The arguably ‘inappropriate or controversial character of a

statement is irrelevant to the question whether it deals with a matter of public

concern.’” Id. (quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987)).

Determining whether speech involves a matter of public concern

“requires us to examine ‘the content, form, and context’ of th[e] speech, as

revealed by the record as a whole.” Id. (quoting Dun & Bradstreet, Inc. v.

Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985)). “As in other First

Amendment cases, the court is obligated ‘to make an independent examination

of the whole record in order to make sure that the judgment does not constitute



a forbidden intrusion on the field of free expression.’” Id. (quoting Bose Corp.

v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)). “In

considering content, form, and context, no factor is dispositive, and it is

necessary to evaluate all the circumstances of the speech, including what was

said, where it was said, and how it was said.” Id. at 454.

In Snyder, the Supreme Court applied this framework to hold that the

First Amendment barred an aggrieved father from recovering for, inter alia,

intentional infliction of emotional distress, against an anti-gay church

congregation whose picketing coincided with the funeral of his son, who was a

marine, notwithstanding the alleged outrageousness and hurtfulness of the

picketers’ speech to Snyder. 1 562 U.S. at 460. Specifically, in that case, Fred

Phelps, the founder of the Westboro Baptist Church, traveled to Maryland,

along with six parishioners, in order to hold a protest on public property 1,000

feet from the funeral of Marine Lance Corporal Matthew Snyder, who was

killed in Iraq in the line of duty. Id. at 448. The picketing was conducted under

police supervision and out of the sight of those at the church. Id. at 457. The

protest was not unruly; there was no shouting, profanity, or violence. Id. The

record confirms that any distress occasioned by Westboro’s picketing turned on

the content and viewpoint of the message conveyed, rather than any

interference with the funeral itself. Id. The picketers peacefully displayed

signs that read “God Hates the USA/Thank God for 9/11,” “America is

Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for

Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re

Going to Hell,” and “God Hates You.” Id. at 448. The Westboro picketers

1 “The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.” Id. at 449.



displayed these signs for about 30 minutes before the funeral began. Id. at

449.

Snyder’s father thereafter filed a diversity action against Phelps and

other picketers alleging, inter alia, state tort claims of intentional infliction of

emotional distress, intrusion upon seclusion, and civil conspiracy. Id. at 449–

50. After a jury awarded millions of dollars in damages, Phelps and his

congregants argued that they were entitled to judgment as a matter of law

because the First Amendment fully protected their speech. Id. at 450. The

district court reduced the punitive damages award, but left the verdict

otherwise intact. Id. The Fourth Circuit reversed, concluding that Westboro's

statements were entitled to First Amendment protection because those

statements “were on matters of public concern, were not provably false, and

were expressed solely through hyperbolic rhetoric.” Id. at 451.

The Supreme Court granted certiorari and affirmed. Id. at 461.

Evaluating the “content, form and context” of the congregants’ protest, the

Court concluded that Westboro’s speech addressed a matter of public concern

and was entitled to “special protection” under the First Amendment, thus

barring Snyder from recovering in tort on the basis of the “outrageousness” of

their speech. Id. at 458. According to the Court:

Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone's eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995).

Id. Further, the Court concluded:



Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech. Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

Id. at 460-461.

Applying these principles to the instant case, the record indisputably

reveals that Bell’s speech addressed a matter of public concern. Bell composed

his song after a number of his female friends at school informed him that

Coaches Wildmon and Rainey had frequently sexually harassed them during

school. The lyrics of Bell’s song2 describe in detail the female students’

allegations of sexual misconduct, e.g., describing Coach Wildmon as “telling

students that they [were] sexy,” and Coach Rainey as “rubbing on the black

girls’ ears in the gym.” With a darkly parodic—and, by many standards,

crude—tone, the song ridicules the coaches for their outrageously

inappropriate conduct with the female students, e.g., describing one coach as

having “drool running down [his] mouth” while he “look[s] down girls’ shirts,”

2 Bell's Facebook page labels the song “P.S. Koaches,” but Bell's complaint identifies the song's title as “PSK The Truth Needs to be Told.”



and positing that Wildmon is “fucking around” because of his wife’s appearance

(the song states that “his wife ain’t got no titties”).3 By describing Rainey as

“Bobby Hill the second,” the song also draws parallels between the coaches’

alleged sexual misconduct and the alleged sexual misconduct of a former

Itawamba coach, Bobby Hill, who was arrested the previous year for sending

sexually explicit text messages to a female student. Although the song does

contain some violent lyrics, the song’s overall “content” is indisputably a darkly

sardonic but impassioned protest of two teachers’ alleged sexual misconduct,

e.g., opining that Rainey is “a fool/30 years old fucking with students at the

school.” That Bell’s song may fall short of the School Board’s aesthetic

preferences for socio-political commentary is not relevant to determining

whether the rap song’s content addresses a matter of public concern. See, e.g.,

Snyder, 562 U.S. at 453 (observing that “[t]he arguably inappropriate or

controversial character of a statement is irrelevant to the question whether it

deals with a matter of public concern”) (internal quotation marks omitted). In

Snyder, the Supreme Court explicitly rejected the argument that the crude and

egregiously offensive messages on the anti-gay protesters’ signs—which

included “Fag Troops,” “God Hates the USA/Thank God for 9/11” and “Thank

God for Dead Soldiers”—should affect the inquiry into whether the signs

addressed a matter of public concern. Id. at 454. According to the Court,

3 Notably, the instances of sexual misconduct detailed in Bell’s lyrics were not unsubstantiated. Four different female students submitted sworn affidavits detailing the sexual harassment they endured at the hands of the coaches. For instance, consistent with Bell’s lyrics, one female student stated in her sworn affidavit that Rainey had rubbed her ears without her permission. Likewise, another female student claimed that Wildmon had looked down her shirt; told her that she “was one of the cutest black female students” at Itawamba; commented on her “big butt”; and told her that he “would date her if [she] were older.” Another female student consistently stated that Rainey told her, “Damn, baby, you are sexy,” while in the school gym. Another female student stated that Rainey told her that he would “turn” her “back straight from being gay.”



“[w]hile these messages may fall short of refined social or political

commentary, the issues they highlight . . . are matters of public import.” Id.

So much more so here where Bell addresses a serious issue of alleged teacher

sexual misconduct toward minor students. Indeed, similar to Snyder, even if

some of Bell’s lyrics were crude and contained violent imagery, “th[is] would

not change the fact that the overall thrust and dominant theme of [Bell’s song]

spoke to broader public issues.” See id.

The “form” of Bell’s speech, i.e., a rap song, likewise militates in favor of

finding that it addresses a matter of public concern. It is axiomatic that music,

like other art forms, has historically functioned as a mechanism to raise

awareness of contemporary social issues.4 Rap is no exception. “Over the past

twenty years there has been extensive academic discourse on the role of rap

music . . . as a form of political expression.” Commonwealth v. Gray, 463 Mass.

731, 755 n.24 (2012) (collecting authorities). A long aspiring rap artist

himself,5 Bell invoked this same tradition by deploying the artistic conventions

and style of the rap genre in order to critique the coaches’ sexual harassment

of female students.

Finally, the “context” of Bell’s speech likewise evinces that it addresses

a matter of public import. By releasing his song on the Internet, Bell sought

to bring attention to the coaches’ sexual misconduct against his female

classmates, just as the Westboro group in Snyder sought to bring attention to

its protest by picketing in public. See Snyder, 562 U.S. at 454–55 (concluding

that the “context” of “[the protesters’] signs, displayed on public land next to a

4 See, e.g., Bob Dylan, The Times They Are A-Changin’, on The Times They Are a Changin’ (Columbia Records 1964) (“Come Senators, Congressmen, please heed the call. Don’t stand in the doorway, don’t block up the hall.”).

5 Bell’s stage name is “T-Bizzle.”



public street, reflect the fact that the church finds much to condemn in modern

society”). In a monologue introduction on the YouTube version of his song, Bell

described the genesis of the rap as follows:

A lot of people been asking me lately you know what was my reasoning behind creating P.S. Koaches. It’s . . . something that’s been going on . . . for a long time [] that I just felt like I needed to address. I’m an artist . . . I speak real life experience. . . .

Later, at the Disciplinary Committee meeting, Bell likewise explained that the

song was an effort to “speak out” on the issue of teacher-on-student sexual

harassment.6

Although Bell was an enrolled high school student, he was not within the

custody of the school system when he initially composed, recorded, and posted

his rap song on the Internet during the Christmas holidays. At that time he

was eighteen years old but living with his mother, and therefore was an adult

capable of making his own decisions as to expressing his views publicly. Even

if he had still been a minor at the time he composed and posted his song, he

would have been subject to the exclusive control, custody, and discipline of his

parent—not the school system. See Shanley v. Ne. Indep. Sch. Dist., 462 F.2d

960, 964 (5th Cir. 1972). Because Bell’s speech did not fall within any of the

narrow unprotected categories of speech recognized by the Supreme Court (e.g.,

obscenity or a true threat),7 it was fully protected speech and presumptively

6 Bell also explained that he did not immediately report the teachers’ misconduct to school authorities because, in his view, school officials generally ignored complaints by students about the conduct of teachers.

7 Although the School Board claims that Bell’s speech constitutes a “true threat,” this

argument is without merit for the reasons explained in the panel majority opinion. See Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 300–03 (5th Cir. 2014) (explaining that Bell’s song did not constitute a “true threat,” “as evidenced by, inter alia, its public broadcast as a rap song, its conditional nature, and the reactions of its listeners”). In any event, as explained herein, the majority opinion does not conclude that Bell’s song was a true threat. See Maj. Op. pp. 26, 33–34. Nor could it.



not subject to governmental regulation or censorship on the basis of its content.

See Erznoznik v. City of Jacksonville, 422 U.S. 205, 213 (1975) (“Speech that is

neither obscene as to youths nor subject to some other legitimate proscriptions

cannot be suppressed solely to protect the young . . .”). Beyond that basic First

Amendment protection, however, the content, form, and context of Bell’s

speech indisputably reveals that it was also entitled to “special protection”

against censorship because it was speech on a matter of public concern

safeguarded “at the heart” of the First Amendment’s protections. Snyder, 562

U.S. at 451–52. Therefore, at a bare minimum, Bell was entitled to as much,

if not more, First Amendment protection as tortfeasors and public employees

when the state attempts to regulate their speech addressing matters of public

concern. See, e.g., Snyder, 562 U.S. at 459–60 (holding that speakers on

matters of public concern could not be held liable in tort for intentional

infliction of emotional distress, intrusion upon seclusion, and civil conspiracy

on the basis of their speech); United States v. Nat’l Treasury Employees Union,

513 U.S. 454, 466–68 (1995) (explaining the restrictions upon the government

to punish employees when they speak on matters of public concern); Rankin,

483 U.S. at 386–89 (holding that threatening statement by public employee

addressed a matter of public concern and government could not terminate her

on the basis of that speech). Moreover, while it is not dispositive of this case,

it bears mentioning that the School Board has never attempted to argue that

Bell’s song stated any fact falsely.

The majority opinion, however, wholly ignores these critical aspects of

Bell’s speech,8 instead reflexively reducing Bell’s rap song to “intimidating,

8 The majority opinion instead summarily concludes that the “misconduct alleged by

Bell against the two teachers is, of course, not at issue.” See Maj. Op. p. 13. Of course, I agree that the veracity of these allegations is not the “issue” in this case anymore than the



harassing, and threatening” speech without any analysis whatsoever. Indeed,

under the majority opinion’s newfound approach, Bell’s off-campus speech is

regulable by school officials pursuant to Tinker because (i) Bell wanted his

speech to be heard by community members and (ii) “a layperson” apparently

would view some of the lyrics in the rap as “threatening,” “harassing,” and

“intimidating.” As an initial matter, I am compelled to point out that the

majority opinion’s test unabashedly adopts almost the precise wording of the

Itawamba County School Board’s disciplinary policy. Unmoored from

traditional constitutional law analysis, the majority opinion instead exalts this

single school board’s policy to a new rule of constitutional law. See Maj. Op. p.

25 (holding that Tinker applies where student’s off-campus speech is

threatening, harassing and intimidating).

Furthermore, Snyder itself squarely illumines the errors in the

majority’s two-prong test. Turning first to the majority opinion’s flawed

criticism of Bell’s intention to publicize his message, the Supreme Court in

Snyder explicitly held that a speaker’s efforts to communicate his message to

the public is a reason to provide his speech with heightened protection—not a

reason to permit greater regulation by the state. 562 U.S. at 454–55

(concluding that protesters’ decision to conduct their protest “on public land

next to a public street” evinced that the speech addressed a matter of public

concern). Yet, in direct contradiction to Snyder, the majority opinion’s

proffered framework perversely faults Bell for his efforts to publicize the

teachers’ sexual misconduct, thus creating precedent that contravenes the very

veracity of Westboro’s signs was the “issue” in Snyder. What is at issue, however, is whether publicly protesting that alleged misconduct warrants “special protection” for Bell’s speech. The answer to that question, as explained above, is yes. In any event, however, Bell has offered uncontroverted proof of the coaches’ sexual harassment of the minor female students in the form of sworn affidavits detailing that abuse, which were introduced into evidence in this case.



values that the First Amendment seeks to protect. See Hustler Magazine, Inc.

v. Falwell, 485 U.S. 46, 50 (1988) (“At the heart of the First Amendment is the

recognition of the fundamental importance of the free flow of ideas and

opinions on matters of public interest and concern.”).

In addition, contrary to the majority opinion’s focus on how a “layperson”

apparently would perceive Bell’s speech, the Supreme Court’s cases, including

Snyder, demonstrate that listeners’ subjective opinions about speech cannot

control whether speech addresses a matter of public concern or not. For

example, in Snyder, the Court explained that “[t]he arguably ‘inappropriate or

controversial character of a statement is irrelevant to the question whether it

deals with a matter of public concern.’” 562 U.S. at 453. (quoting Rankin, 483

U.S. at 387). Specifically, in Snyder, a layperson likewise might have viewed

the anti-gay protesters’ messages as harassing (“God Hates You”), intimidating

(“You’re Going to Hell”), and threatening (“Thank God for Dead Soldiers,”

“Thank God for IEDs”), but the Court nevertheless held that “the overall thrust

and dominant theme of Westboro’s demonstration spoke to broader public

issues” entitling it to “special protection.” Id. at 454. Thus, the “special

protection” that must be afforded to Bell’s speech here cannot be qualified by

the majority opinion’s mere conjecture that some hypothetical “layperson”

might consider a few of Bell’s lyrics to fit the Oxford English Dictionary’s

definition of “threatening,” “harassing” or “intimidating.” See id. Indeed, there

is no constitutional basis for excluding “threatening,” “harassing,” or

“intimidating” speech from the “special protection” that is afforded speech on

matters of public concern. The majority opinion’s approach is thus tantamount

to permitting mainstream sensitivities to define whether speech addresses a

matter of public concern or not. Snyder clearly demonstrates that approach is

flawed. Id. at 453; see also Cohen v. California, 403 U.S. 15, 21 (1971)



(recognizing that the First Amendment does not permit “a majority to silence

dissidents simply as a matter of personal predilections”).

In sum, by refusing to recognize that Bell’s speech addresses a matter of

public concern and is thereby entitled to “special protection” against

censorship, the majority opinion creates a precedent that effectively inoculates

school officials against off-campus criticism by students. In so doing, the

majority opinion fails to take seriously the long-established principle that the

First Amendment was adopted to protect “vehement, caustic, and sometimes

unpleasantly sharp attacks on government and public officials.” Sullivan, 376

U.S. at 270; cf. City of Houston v. Hill, 482 U.S. 451, 465 (1987) (holding that

the First Amendment does not permit states to “provide the police with

unfettered discretion to arrest individuals for words or conduct that annoy or

offend them”). Contrary to the majority opinion’s position, school officials are

no exception. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,

637 (1943) (“The Fourteenth Amendment . . . protects the citizen against the

State itself and all of its creatures—Boards of Education not excepted.”);

Shanley, 462 F.2d at 964 (“It should have come as a shock to the parents of

five high school seniors . . . that their elected school board had assumed

suzerainty over their children before and after school, off school grounds, and

with regard to their children’s rights of expressing their thoughts. We trust

that it will come as no shock whatsoever to the school board that their

assumption of authority is an unconstitutional usurpation of the First

Amendment.”).

II.

The en banc majority opinion affirms the School Board’s punishment of

Bell pursuant to its new and unprecedented rule of constitutional law whereby

schools may punish students’ off-campus speech pursuant to Tinker if that



speech is intentionally directed at the school community and is “threatening,

harassing, and intimidating” to the ears of a “layperson” without any

instruction on the meaning of these terms. The majority opinion’s content-

based, vague, and “layperson”-based restriction directly conflicts with the core

principles underlying the First Amendment’s guarantees as explained by the

Supreme Court.

A.

“The First Amendment provides that ‘Congress shall make no law . . .

abridging the freedom of speech.’” United States v. Stevens, 559 U.S. 460, 468

(2010). As a general matter, the First Amendment prohibits the government

from “restrict[ing] expression because of its message, its ideas, its subject

matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S.

564, 573 (2002). “From 1791 to the present, however, the First Amendment

has permitted restrictions upon the content of speech in a few limited areas,

and has never included a freedom to disregard these traditional limitations.”

Stevens, 559 U.S. at 468. “These limited areas—such as obscenity, incitement,

and fighting words—represent well-defined and narrowly limited classes of

speech, the prevention and punishment of which has never been thought to

raise any constitutional problem.” Brown v. Entm’t Merchants Ass’n, 131 S.

Ct. 2729, 2733 (2011) (internal quotation marks and citations omitted).

In Brown, the Supreme Court specifically rejected the argument that

state officials retain a broad “free-floating power” to create whole new

categories of unprotected speech that are applicable solely to minors, even if

such speech is deemed harmful in the eyes of the government. Id. at 2735–36.

In that case, the Court struck down as violative of the First Amendment a

California law that prohibited the sale or rental of violent video games to

minors. Id. at 2732-33. Specifically, the law proscribed the sale or rental to



minors of video “games ‘in which the range of options available to a player

includes killing, maiming, dismembering, or sexually assaulting an image of a

human being, if those acts are depicted’ in a manner that ‘[a] reasonable

person, considering the game as a whole, would find appeals to a deviant or

morbid interest of minors,’ that is ‘patently offensive to prevailing standards

in the community as to what is suitable for minors,’ and that ‘causes the game,

as a whole, to lack serious literary, artistic, political, or scientific value for

minors.’” Id. (quoting Cal. Civ. Code. Ann. § 1746(d)(1)(A)). California

purportedly enacted the law based on its legislative judgment, which it claimed

was supported by research, that such games were harmful to children. Id. at

2738-39. In defending the law, California argued, inter alia, that the First

Amendment permitted it “to create a wholly new category of content-based

regulation that is permitted only for speech directed at children”—viz.,

“violent” speech as defined above that lacked “serious literary, artistic,

political, or scientific value for minors.” Id. at 2733–35.

In a strongly worded opinion by Justice Scalia, the Supreme Court

rejected California’s arguments and struck down the law. Concluding that its

recent decision in United States v. Stevens, 559 U.S. 460 (2010),9 controlled the

9 In Stevens, the United States government had attempted to leverage similar arguments in defending a federal statute banning depictions of animal cruelty. 559 U.S. at 468-69. The United States argued that “depictions of animal cruelty” should be added to the list of categories of unprotected speech, alongside obscenity, incitement, and defamation. Id. However, because there was no “tradition excluding depictions of animal cruelty from ‘the freedom of speech’ codified in the First Amendment,” the Court refused to create a new category of unprotected speech for such depictions. Id. The Court also explicitly rejected “as startling and dangerous” the government’s contention that it could create new categories of unprotected speech by applying a “simple balancing test” that weighs the value of a particular type of speech against its social costs. Id. at 470. According to the Court,

[t]he First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the



outcome of the case, the Court held that California could not defend its law by

analogizing the violent speech at issue to the obscenity exception to the First

Amendment because its prior “cases have been clear that the obscenity

exception . . . does not cover whatever a legislature finds shocking, but only

depictions of sexual conduct.” Id. at 2734. More critically, however, the Court

outright rejected California’s argument that the First Amendment permitted

the state “to create a wholly new category of content-based regulation,” i.e.,

speech containing violent imagery, “that is permissible only for speech directed

at children.” Id. at 2735. Although acknowledging that the state “possesses

legitimate power to protect children from harm,” the Court concluded that such

power “does not include a free-floating power to restrict the ideas to which

children may be exposed.” Id. at 2736. Further, while noting that California’s

argument would “fare better if there were a longstanding tradition in this

country of specially restricting children’s access to depictions of violence,” the

Court observed that there was no such tradition, as evidenced by the extent of

violence contained in common children’s stories (e.g., Hansel and Gretel) and

high school reading lists (e.g., the description in “Lord of the Flies” of a

schoolboy who is savagely murdered by other children). Id. at 2736.

Accordingly, as in Stevens, because there was no “longstanding tradition” of

prohibiting minors’ participation in speech containing violent imagery, the

Court refused to hold that such speech is categorically exempted from First

Amendment protection. Id. at 2736-38.

cost. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

Id. A subsequent, much more narrow version of the statute at issue in Stevens, was upheld by our court. United States v. Richards, 755 F.3d 269, 271, 279 (5th Cir. 2014) (discussing history of 18 U.S.C. § 48 and upholding version that proscribed only “unprotected obscenity”), cert. denied, 135 S. Ct. 1546 (2015).



Applying these principles to the instant case, Brown represents a forceful

reaffirmation by the Court that the First Amendment applies to minors,10 id.

at 2735, and that the government may only restrict that constitutional right in

“narrow and well-defined circumstances,” id. at 2736 (citing Erznoznik, 422

U.S. at 212–13). Indeed, after Brown, it cannot seriously be contested that

minors enjoy the First Amendment right to engage in speech containing violent

imagery when they are at home, away from school, so long as that speech does

not rise to the level of a true threat, incitement or fighting words. See id. at

2736-38 (holding that speech containing violent imagery is protected under the

First Amendment, even for minors). Nevertheless, the majority opinion wholly

fails to reckon with these important statements by the Court. Instead, by

simply assuming that all children speak “qua students,” its legal analysis

begins with the false premise that the speech at issue constitutes “student

speech” that must be “tempered in the light of a school official’s duty” to teach

students appropriate behavior. See Maj. Op. p. 14 (discussing the First

Amendment rights of “[s]tudents qua students”). But the Supreme Court has

never suggested that minors’ constitutional rights outside of school are

somehow qualified if they coincidentally are enrolled in a public school. To the

contrary, Brown evinces that the majority opinion instead should have begun

10 In so holding, the Court also explicitly rejected Justice Thomas’ contention in his dissent that minors have no right to speak absent their parents’ consent. Id. at 2736 n.3 (noting that Justice Thomas “cites no case, state or federal, supporting this view, and to our knowledge there is none”). Although conceding that the government may have authority to enforce parental prohibitions in certain circumstances (e.g., forcing concert promoters not to admit minors whose parents have forbidden them from attending), the Court nevertheless observed that “it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent. The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors.” Id. (emphasis in original).



its analysis from the basic premise that children are entitled to “significant”

First Amendment rights. 131 S. Ct. at 2735–36.

Further, Brown and Stevens illuminate the error in the majority

opinion’s decision to proclaim an entirely new, content-based restriction on

students’ First Amendment rights. Although acknowledging that the

government has certain powers to protect children from harm, the Supreme

Court in Brown expressly held that this “does not include a free-floating power

to restrict the ideas to which children may be exposed.” 131 S. Ct. at 2736. In

so holding, the Court echoed the principles announced in Stevens and rejected

the argument that the state is empowered to carve out new “categorical

exemptions” to the First Amendment’s protections (e.g., obscenity) that are

solely applicable to minors absent a “longstanding tradition” of restricting such

speech. Id. In direct contradiction to these principles, however, the majority

opinion here affords state officials with precisely such a “free-floating power”

by effectively permitting them to regulate an unprecedented and content-based

category of speech, i.e., “threatening,” “harassing,” and “intimidating” speech

that is directed at the school community. Yet, the majority opinion cites no

“longstanding tradition” in this country of “specially restricting” children’s

ability to engage off campus in “threatening,” “harassing,” or “intimidating”

speech. Nor could it. See id. (“California’s argument would fare better if there

were a longstanding tradition in this country of specially restricting children’s

access to depictions of violence, but there is none.”); Stevens, 559 U.S. at 469

(“But we are unaware of any similar tradition excluding depictions of animal

cruelty from ‘the freedom of speech’ codified in the First Amendment, and the

Government points us to none.”). To the extent the majority opinion posits this



category of speech is without redeeming social value11 or that its risks

outweigh its costs, the Supreme Court has flatly rejected such a rationale for

carving out new categories of unprotected speech. See Stevens, 559 U.S. at 470

(“The First Amendment’s guarantee of free speech does not extend only to

categories of speech that survive an ad hoc balancing of relative social costs

and benefits.”). In this connection, the Court in Brown likewise held that

majoritarian abhorrence for a category of speech (i.e., violent speech) will not

justify a categorical restriction upon that type of speech. See Brown, 131 S.

Ct. at 2733 (“Under our Constitution, esthetic and moral judgments about art

and literature . . . are for the individual to make, not for the Government to

decree, even with the mandate or approval of a majority.” (internal quotation

marks and citation omitted)). Moreover, contrary to the majority opinion’s

approach, the Supreme Court in both Brown and Stevens emphasized that the

“historic and traditional categories” of unprotected speech (e.g., fighting words,

obscenity) are “well defined and narrowly limited.” See Brown, 131 S. Ct. at

2733; Stevens, 559 U.S. at 468-69. Here, far from announcing a “narrow” or

“well defined” restriction on speech, the majority opinion simply declares that

schools may regulate off-campus student speech that its invented layperson

might consider “threatening,” “harassing,” or “intimidating.” As detailed

below, the breadth of these content-based restrictions will leave students to

speak at their own peril away from school, because school officials will be

unconstrained due to the majority opinion’s failure to provide any specific or

determinate definition of “threatening,” “harassing,” or “intimidating.”

11 However, as explained above, Bell’s speech clearly had “social value” as it constituted speech on a matter of public concern.



B.

The Court’s opinion in Reno v. American Civil Liberties Union, 521 U.S.

844 (1997), further reveals the flaws in the majority opinion’s holding that

schools may regulate students’ off-campus online speech, like Bell’s. Reno was

the first significant First Amendment case specifically pertaining to the

Internet to reach the Supreme Court, and concerned a facial challenge to a

congressional statute, the Communications Decency Act of 1996 (“CDA”),

which was aimed at protecting minors from “indecent” and “patently offensive”

material on the Internet by prohibiting the transmission of those materials to

minors. 521 U.S. at 858-59. In striking down the CDA as violative of the First

Amendment, the Court articulated a number of principles that are directly

pertinent to the instant case.

First, Reno reveals that the majority opinion here is in error in

concluding that the advent of the Internet and other technologies necessitates

expanding schools’ authority to regulate students’ off-campus speech. See Maj.

Op. p. 19. In direct contradiction to the majority opinion’s logic, the Court in

Reno held that Supreme Court precedents “provide no basis for qualifying the

level of First Amendment scrutiny that should be applied to [the Internet].”

Id. at 870. Although the Court previously had recognized that special factors

justify greater regulation of speech expressed in broadcast media, see, e.g., FCC

v. Pacifica Foundation, 438 U.S. 726 (1978), the Court explicitly found that

“[t]hose factors are not present in cyberspace.” Reno, 521 U.S. at 868.12

12 The Court in Brown echoed this principle in observing that government should not be afforded greater deference to restrict speech when new communication technologies emerge. 131 S. Ct. at 2733 (“[W]hatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.”) (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952)); accord Citizens United v. Federal Election Comm’n, 558 U.S. 310, 326 (2010) (“Courts, too, are bound by the



Nevertheless, the majority opinion overlooks these unequivocal statements by

the Supreme Court. See, e.g., Maj. Op. p. 19 (concluding that “[t]he advent of

[the Internet and other] technologies and their sweeping adoption by students

present new and evolving challenges for school administrators, confounding

previously delineated boundaries of permissible regulations”).

In addition, the Court’s analysis in Reno reveals how the majority

opinion’s ill-devised framework for regulating minors’ off-campus Internet

speech would be too vague altogether for the First Amendment to tolerate. The

Court in Reno took special issue with the vagueness of the terms that the CDA

utilized to describe the proscribed speech. Id. at 871. For example, the Court

emphasized that the statute did not define either “indecent” material or

material that “in context, depicts or describes, in terms patently offensive as

measured by contemporary community standards, sexual or excretory

activities or organs.” Id. As the Court observed, “[g]iven the absence of a

definition of either term, this difference in language will provoke uncertainty

among speakers about how the two standards relate to each other and just

what they mean. Could a speaker confidently assume that a serious discussion

about birth control practices, homosexuality, the First Amendment issues

raised by the Appendix to our Pacifica opinion, or the consequences of prison

rape would not violate the CDA?” Id. Similar vagueness concerns drove Justice Alito to conclude that the

California “violent video game” regulation in Brown violated the Constitution.

Brown, 131 S. Ct. at 2743-46 (Alito, J., joined by Roberts, C.J., concurring in

the judgment). As Justice Alito observed, one of the elements defining the

First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.”).



proscribed violent video games was whether a “reasonable person, considering

[a] game as a whole,” would find that it “appeals to a deviant or morbid interest

of minors.” Id. at 2745. However, as Justice Alito observed, the “prevalence of

violent depictions in children’s literature and entertainment creates numerous

opportunities for reasonable people to disagree about which depictions may

excite ‘deviant’ or ‘morbid’ impulses.” Id. at 2746. Here, the en banc majority opinion similarly announces a new,

categorical restriction upon students’ off-campus speech that fails to “give

people of ordinary intelligence fair notice of what is prohibited.” See id. at

2743. Specifically, the majority opinion holds that school officials may punish

students’ off-campus speech when (i) it is intended to be heard by the school

community; (ii) could be perceived by a layperson as “threatening,” harassing,”

and “intimidating,”; and (iii) satisfies the Tinker “substantial-disruption”

framework. See Maj. Op. pp. 25–26. As with the statute struck down in Reno,

however, each one of these three prongs to the majority opinion’s framework

contains defects that fail to provide students, like Bell, with adequate notice of

when their off-campus speech crosses the critical line between protected and

punishable expression. First, the majority opinion’s focus on whether the

student “intended” his speech to reach the school community significantly

burdens the ability of students to engage in online speech, because virtually any speech on the Internet can reach members of the school community. See

Reno, 521 U.S. at 870 (observing that the Internet permits “any person . . . [to]

become a town crier with a voice that resonates farther than it could from any

soapbox”). How, then, can a student be certain that his off-campus blog posting

will not be read by members of the school community and thereby be deemed

by school officials to be “intentionally direct[ed] at the school community”? As

a result of the ambiguities in the majority opinion’s framework, he simply



cannot. See id. (“Through the use of Web pages, mail exploders, and

newsgroups, the same individual can become a pamphleteer.”).

Second, the majority opinion’s “threatening, harassing, and

intimidating” test suffers from the precise same ambiguities that drove the

Court to strike down the CDA in Reno. As with the CDA, the majority opinion

fails to provide any meaningful definition of what constitutes “threatening,”

“harassing,” or “intimidating” speech. Rather, the majority opinion merely

concludes that if a “layperson would understand”13 speech to qualify as

“threatening,” “harassing,” and “intimidating,” then that speech is regulable

under Tinker. In so holding, the majority opinion fails to apprehend that

reasonable minds may differ about when speech qualifies as “threatening,”

harassing,” or “intimidating.” As the Supreme Court’s First Amendment

precedents make clear, “it is . . . often true that one man’s vulgarity is another’s

lyric,” Cohen v. California, 403 U.S. 15, 25 (1971), and that the very same

words may simultaneously be perceived as repulsive to some and political to

others, see Snyder, 562 U.S. at 444–45 (“Westboro may have chosen the picket

location to increase publicity for its views, and its speech may have been

particularly hurtful to Snyder. That does not mean that its speech should be

afforded less than full First Amendment protection under the circumstances of

13 Unfortunately, the majority opinion provides virtually no details about the identity of its apocryphal layperson. In any event, I am dubious that a school board may punish students for making statements at home and on the Internet that the most sensitive of listeners in society would find to be “threatening,” “harassing,” or “intimidating.” See Ashcroft, 542 U.S. at 674 (Stevens, J. concurring) (“I continue to believe that the Government may not penalize speakers for making available to the general World Wide Web audience that which the least tolerant communities in America deem unfit for their children’s consumption.”). Nevertheless, by permitting school officials to punish off-campus speech like Bell’s pursuant to Tinker, the majority opinion announces a precedent whereby the First Amendment rights of minors outside of school are “only . . . as strong as the weakest, or at least the most thin-skinned, listener in a crowd.” Cuff ex re. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 120 (2d Cir. 2012) (Pooler, J., dissenting).



this case.”). Thus, “[g]iven the vague contours of the coverage of the [majority

opinion’s framework], it [will] unquestionably silence[] some speakers whose

messages would be entitled to constitutional protection.” Reno, 521 U.S. at

874.

Third, the aforementioned concerns are exacerbated by the fact that the

Tinker standard itself could be viewed as somewhat vague.14 Tinker permits

schools to regulate on-campus expressive activities not only when the speech,

in fact, causes a substantial disruption, but also when school officials can

“reasonably forecast” such a disruption, Tinker, 393 U.S. at 514. If this

standard were applied off campus, how can a student or a student’s parents

know with any degree of certainty when off-campus online speech can be

“forecasted” to cause a “substantial disruption”? Although Tinker is not a

completely toothless standard, see A.M. ex rel. McAllum v. Cash, 585 F.3d 214,

221 (5th Cir. 2009), its framework inherently requires guesswork about how a

third-party school official will prophesize over the effect of speech. Thus, in

light of the majority opinion, before a student drafts an email or writes a blog

entry, he hereinafter will be required to conjecture over whether his online

speech might cause a “disruption” that is “substantial” in the eyes of school

officials, or, alternatively, whether a school official might reasonably portend

that a substantial disruption might happen. In this way, the majority opinion

erroneously defines the contours of protected speech with reference to the

potential reactions of listeners. See Beckerman v. City of Tupelo, 664 F.2d 502,

509 (5th Cir. 1981) (observing that the Supreme Court’s cases concerning the

“hecklers’ veto” show that it “is not acceptable for the state to prevent a speaker

14 As explained below, this framework makes sense for student speech occurring on campus, where school officials have competing interests in maintaining conduct in the schools. However, this standard is inappropriate where, as here, the school’s interest is comparatively attenuated.



from exercising his constitutional rights because of the reaction to him by

others”).

What will be the direct consequence of these various layers of vagueness

upon students’ First Amendment freedoms? “[I]t will operate[] to chill or

suppress the exercise of those freedoms by reason of vague terms or overbroad

coverage.” See Nevada Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2353

(2011) (Kennedy, J. concurring). Indeed, for students, whose performance at

school largely determines their fate in the future, even the specter of

punishment will likely deter them from engaging in off-campus expression that

could be deemed controversial or hurtful to school officials. Accord Reno, 521

U.S. at 871–72 (“The vagueness of such a regulation raises special First

Amendment concerns because of its obvious chilling effect on free speech.”).

Such a burden on student’s expressive activities simply cannot be reconciled

with the long-established principle that “the point of all speech protection . . .

is to shield [from censorship] just those choices of content that in someone’s

eyes are misguided, or even hurtful.” Hurley v. Irish–American Gay, Lesbian

and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995). C.

Further, by adopting a rule that focuses on whether a “layperson” would

perceive Bell’s speech as “threatening,” “harassing,” and “intimidating,” the

majority opinion also ignores Supreme Court case law that demands a more

burdensome showing upon the government before levying penalties upon a

speaker based on the content of his speech.

Amongst the most consistent principles of First Amendment

jurisprudence has been the need for “[e]xacting proof requirements” before

imposing liability for speech. See Illinois ex rel. Madigan v. Telemarketing

Associates, Inc., 538 U.S. 600, 620 (2003). For example, the Supreme Court



has explicitly rejected arguments permitting tort liability to be imposed for

speech pertaining to public figures simply because it “is patently offensive and

is intended to inflict emotional injury.” Falwell, 485 U.S. at 50. Rather, in

order to “give adequate ‘breathing space’ to the freedoms protected by the First

Amendment,” the Court has held that a public figure must prove not only

falsity but also actual malice. Id. at 56. Similarly, in the criminal context,

“mens rea requirements . . . provide ‘breathing room’ for more valuable speech

by reducing an honest speaker’s fear that he may accidentally incur liability

for speaking.” United States v. Alvarez, 132 S. Ct. 2537, 2553 (2012) (Breyer,

J., concurring in the judgment). Thus, in Brandenburg v. Ohio, 395 U.S. 444

(1969), the Supreme Court reversed the conviction of a Ku Klux Klan leader

for threatening “revengeance” if the “suppression” of the white race continued,

relying on “the principle that the constitutional guarantees of free speech and

free press do not permit a State to forbid or proscribe advocacy of the use of

force or of law violation except where such advocacy is directed to inciting or

producing imminent lawless action and is likely to incite or produce such

action.” Id. at 447 (emphasis added); see also Noto v. United States, 367 U.S.

290, 297–98 (1961) (“[T]he mere abstract teaching of . . . the moral propriety or

even moral necessity for a resort to force and violence, is not the same as

preparing a group for violent action and steeling it to such action.”).

Subsequently, the Court applied Brandenberg’s focus on the “intent” of the

speaker to hold that a speaker may not be held liable for damages in a civil

case even when his remarks “might have been understood . . . as intending to

create a fear of violence.” N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886,

904, 927 (1982) (emphasis added). Applying these well-established First Amendment principles, the

Supreme Court in Virginia v. Black, 538 U.S. 343 (2003), struck down a



Virginia statute that criminalized burning a cross in public “with the intent of

intimidating any person,” and which provided that the public burning of a cross

“shall be prima facie evidence of an intent to intimidate.” Id. at 347–48.

Although cross burning is “widely viewed as a signal of impending terror,” id.

at 391 (Thomas, J., concurring), “in light of [its] long and pernicious history as

a signal of impending violence,” id. at 363 (opinion of O’Connor, J.), a plurality

of the Court held that a subjective intent requirement was necessary in order

to distinguish “constitutionally proscribable intimidation” from “core political

speech,” id. at 365–66. “Intimidation in the constitutionally proscribable sense

of the word is a type of true threat, where a speaker directs a threat to a person

or group of persons with the intent of placing the victim in fear of bodily harm

or death.” Id. at 360 (emphasis added). As the plurality explained, the prima

facie evidence provision of the statute was facially unconstitutional because it

“ignore[d] all the contextual factors that are necessary to decide whether a

particular cross burning was intended to intimidate. The First Amendment

does not permit such a short cut.” Id. at 367. In other words, the prima facie

evidence provision “strip[ped] away the very reason a state may ban cross

burning with the intent to intimidate.” Id. at 365.

Recently, in Elonis v. United States, 135 S. Ct. 2001 (2015), the Supreme

Court was presented with the opportunity to revisit its reasoning in Virginia

v. Black and clarify whether or not the First Amendment requires a speaker to

have a “subjective intent” to threaten an individual before the government can

impose criminal penalties for a threat. Id. at 2004 (“The question is whether

[18 U.S.C. § 875(c)] . . . requires that the defendant be aware of the threatening

nature of the communication, and—if not—whether the First Amendment

requires such a showing.”). The Court, however, avoided this constitutional

question by deciding the case on narrower grounds, viz., that a jury instruction



explaining that petitioner could be convicted upon a showing of negligence was

inconsistent with the statute’s implicit mens rea requirement. Id. at 2012

(“The jury was instructed that the Government need only prove that a

reasonable person would regard Elonis’s communications as threats, and that

was error. . . . Given our disposition, it is not necessary to consider any First

Amendment issues.”). Specifically, the Court outright rejected the

government’s contention that the statute permitted petitioner to be convicted

if he (i) knew the “contents and context” of his speech and (ii) “a reasonable

person would have recognized that the [speech] would be read as genuine

threats.” Id. at 2011. While recognizing that such a “‘reasonable person’

standard is a familiar feature of civil liability in tort law,” the Court concluded

that the standard is “inconsistent with the conventional requirement for

criminal conduct—awareness of some wrong doing.” Id. (internal quotation

marks omitted).

Applying the foregoing principles to the instant case, the majority

opinion errs by making the scope of Bell’s First Amendment rights outside of

school contingent upon whether a “layperson” might interpret his speech to be

“threatening,” “harassing,” and “intimidating,” see Maj. Op. pp. 26–27, and

whether a school official might “reasonably” forecast a substantial disruption

based on his speech, see Maj. Op. pp. 30–31. The majority opinion’s test

effectively amounts to the very kind of negligence standard that the Supreme

Court has rejected for determining whether a speaker may be held liable on

the basis of his words. See, e.g., Claiborne Hardware Co., 458 U.S. at 928–29;

Brandenburg, 395 U.S. at 447. Further, by permitting Bell to be punished

solely on the basis that a third-party might consider his speech “intimidating”

or “threatening,” the majority opinion ignores the Court’s explanation in Black

that “[i]ntimidation in the constitutionally proscribable sense of the word is a



type of true threat, where a speaker directs a threat to a person or group of

persons with the intent of placing the victim in fear of bodily harm or death.”

538 U.S. at 360 (emphasis added). Instead, perhaps conceding sub silentio that

Bell’s speech does not satisfy the demanding “true threat” standard described

in Black, the majority opinion circumvents this issue altogether by creating an

entirely new and diluted test that renders speech unprotected so long as its

invented layperson might view the speech as “intimidating,” “harassing,” and

“threatening,” despite the fact that such speech does not constitute a “true

threat.” See Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 300–03 (5th Cir.

2014) (explaining that Bell’s song did not constitute a “true threat,” “as

evidenced by, inter alia, its public broadcast as a rap song, its conditional

nature, and the reactions of its listeners”). Moreover, the majority opinion’s

approach is especially problematic in light of the critical fact that Bell’s speech

addresses a matter of public concern. In cases involving speech addressing

public figures and matters of public import, the Court has consistently applied

a stricter evidentiary burden before permitting liability to be imposed on a

speaker on the basis of his speech. See, e.g., Falwell, 485 U.S. at 56 (holding

that “public figures and public officials” must prove “actual malice” in addition

to falsity before recovering for intentional infliction of emotional distress on

the basis of speech directed at them); Sullivan, 376 U.S. at 279–80 (holding

that the First Amendment “prohibits a public official from recovering damages

for a defamatory falsehood relating to his official conduct unless he proves that

the statement was made with ‘actual malice’”). Here, in sharp contrast, the

majority opinion announces a constitutional rule whereby students, like Bell,

may be held liable for their off-campus speech that criticizes official misconduct

based largely on the reactions of the very officials in question or the perception

of the majority opinion’s invented “layperson.” Such a flimsy standard simply



cannot be squared with the foregoing First Amendment precedents. See also

Pacifica Foundation, 438 U.S. at 745–46 (“[T]he fact that society may find

speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the

speaker’s opinion that gives offense, that consequence is a reason for according

it constitutional protection.”).

III. In ultimately holding that the Tinker framework applies to off-campus

speech like Bell’s, the majority opinion ignores that Tinker’s holding and its

sui generis “substantial-disruption” framework are expressly grounded in “the

special characteristics of the school environment.” Tinker v. Des Moines Indep.

Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). In Tinker, the Court confronted the

question whether school officials may, consistent with the First Amendment,

restrict students’ expressive activities that occur at school. Id. Specifically,

the students in Tinker were suspended for wearing to school armbands that

expressed their opposition to the Vietnam War. Id. at 504. While recognizing

that students do not “shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate,” id. at 506, the Court also observed that

students’ exercise of their First Amendment rights at school must be calibrated

against the competing need of school officials “to prescribe and control conduct

in the schools,” id. at 507 (emphasis added). To reconcile the interests at stake

that may collide when student speech occurs on campus, the Court articulated a rule that has become the lodestar for evaluating the scope of students’ on-

campus First Amendment rights ever since: while on campus, a student is free

to “express his opinions, even on controversial subjects, if he does so without

‘materially and substantially interfer(ing) with the requirements of

appropriate discipline in the operation of the school’ and without colliding with



the rights of others.” Id. at 513 (quoting Burnside v. Byars, 363 F.2d 744, 749

(5th Cir. 1966)).

The Supreme Court’s holding in Tinker is expressly based upon the

“special characteristics of the school environment,” id. at 506, and the need to

defer to school officials’ authority “to prescribe and control conduct in the

schools,” id. at 507. Indeed, the very analytic content of the resulting

“substantial-disruption” framework evinces that the Court was solely

concerned with the potentially disruptive consequences of speech by students

that occurs on campus, where school officials and fellow students may be

directly affected. See, e.g., id. at 514 (“[The students] neither interrupted

school activities nor sought to intrude in the school affairs or the lives of others.

They caused discussion outside of the classrooms, but no interference with

work and no disorder.”). Moreover, the Court’s later school-speech cases

emphasize that the Tinker framework is limited to speech occurring within the

school environment. For example, according to the Court’s decision in Bethel

School District No. 403 v. Fraser, 478 U.S. 675 (1986), Tinker rests on the

premise that “the constitutional rights of students in public schools are not

automatically coextensive with the rights of adults in other settings.” Id. at

682 (emphasis added); see also id. at 688 n.1 (Brennan J., concurring in

judgment) (stating that the Court’s student-speech precedents “obviously do

not [apply] outside of the school environment” and also observing that if the

plaintiff in Fraser “had given the speech [for which he was punished] outside

of the school environment, he could not have been penalized simply because

[school] officials considered his language to be inappropriate”). Subsequently,

in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), the Court

described its decision in Tinker as “address[ing] educators’ ability to silence a

student’s personal expression that happens to occur on the school premises.”



Id. at 271 (emphasis added); see also id. at 266 (observing that schools may

regulate some on-campus speech “even though the government could not

censor similar speech outside the school”). Most recently, in Morse, Justice Alito’s controlling concurrence observed

that Tinker allows school officials to regulate “in-school student speech . . . in

a way that would not be constitutional in other settings.” 551 U.S. at 422

(Alito, J. concurring). Justice Alito further emphasized the historically

significant distinction between on-campus and off-campus expression by

comparing the unique harms of speech that occurs within the schoolyard as

opposed to outside of school: “School attendance can expose students to threats

to their physical safety that they would not otherwise face. Outside of school,

parents can attempt to protect their children in many ways and may take steps

to monitor and exercise control over the persons with whom their children

associate.” Id. at 424 (Alito, J. concurring). In this regard, Justice Alito also

rejected the contention that school officials “stand in the shoes of the students’

parents,” explaining that “[i]t is a dangerous fiction to pretend that parents

simply delegate their authority—including their authority to determine what

their children may say and hear—to public school authorities.” Id. Further,

Justice Alito observed that he joined the majority opinion on the understanding

that the Court’s holding does not justify “any other speech restriction” based

on the “special characteristics” of the school environment beyond those already

recognized in the Court’s prior student-speech cases. Id. at 423. Indeed, in

narrowly limiting the reach of the Court’s holding, Justice Alito characterized

school officials’ regulation of the student-speech at issue in that case15 as

15 In Morse, the Court held that the First Amendment did not prevent school officials from punishing a student who unfurled at a school-sanctioned event a banner that reasonably could be perceived as promoting illegal drug use. 551 U.S. at 396. Notably, the majority opinion in this case overstates Morse’s narrow holding by describing that holding as



“standing at the far reaches of what the First Amendment permits.” Id. at 425.

As the foregoing demonstrates, Morse and the Court’s other post-Tinker

precedents make crystal clear what the majority opinion and some of our sister

circuits’ decisions16 fail to follow: Tinker does not authorize school officials to

regulate student speech that occurs off campus and not at a school-sponsored

event, where the potential “collision” of interest upon which Tinker’s holding

pivots simply is not present.

Further, even assuming arguendo, without deciding, schools possess

some authority to regulate students’ off-campus speech under certain

circumstances, the majority opinion errs in deeming the Tinker framework as

the appropriate standard to delineate the scope of that authority. In reaching

this conclusion, the majority opinion’s logic is flawed from the very start. The

majority opinion oddly begins its analysis by citing our opinion in Morgan v.

Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc), for the proposition that the

threshold task facing the en banc court is “categorizing the student speech at

issue.” Id. at 375. Without ever mentioning that Morgan was a case involving

extending to “grave and unique threats to the physical safety of students, in particular speech advocating illegal drug use.” See Maj. Op. p. 15 (emphasis added). Contrary to the majority opinion’s description, Justice Alito’s concurrence explicitly stated that the Court’s holding was limited to the specific speech at issue in that case, viz., speech advocating drug use at a school event. See Morse, 551 U.S. at 425 (Alito, J. concurring).

16 For example, in concluding that Tinker applies to off-campus speech, the Eighth

Circuit committed the same fundamental misreading of Tinker that the district court committed in the instant case. D.J.M. ex rel D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 765 (8th Cir. 2011). Specifically, the Eighth Circuit read wholly out of context the Court’s statement in Tinker that schools may regulate student speech “in class or out of it,” 393 U.S. at 513 (emphasis added), in order to hold that the school district in that case was permitted to punish a student for his off-campus online speech pursuant to Tinker’s substantial-disruption framework. The majority opinion likewise commits the same error in emphasizing this very language in reasoning that Tinker applies to off-campus speech. See Maj. Op. p. 15.



qualified immunity for school officials’ suppression of on-campus speech,17 the

majority opinion then proceeds to determine whether it should evaluate Bell’s

claim under the Tinker framework or under one of the other categorical

exemptions for student speech that the Supreme Court or this court has

recognized. See Maj. Op. pp. 17–18. Then, after determining that the School

Board here did not punish Bell because his speech was lewd (Fraser) or school-

sponsored (Hazelwood) or threatened a Columbine-style mass shooting

(Ponce), the majority opinion summarily concludes via process-of-elimination

that the Tinker framework must be the appropriate framework for evaluating

whether Bell’s speech is protected or not. See Maj. Op. p. 18 (“We therefore

analyze Bell’s speech under Tinker.”). But the majority opinion suspiciously

neglects to note that not a single one of these precedents has ever been applied

by the Supreme Court or our Circuit18 to regulate a student’s off-campus

17 The majority opinion in Morgan ultimately held that the school officials’ conduct of prohibiting students from passing out religious messages on campus violated the constitution. 659 F.3d at 364 (explaining that Judge Elrod’s opinion represented the majority opinion on this point). However, the majority of the en banc court found that the right announced was not “clearly established.” Id. The reason that “categorization” of the speech was important in that case was because of Establishment Clause concerns if the speech could be perceived as school-sponsored. Id. at 375. The analysis there has little to do with the matters at issue here.

18 The majority opinion mischaracterizes our precedents by suggesting that we

previously have held that Tinker applies to purely off-campus speech. See Maj. Op. pp. 15, 22. In Shanley, we held that school officials violated the First Amendment when they punished students for selling underground newspapers “near but outside the school premises on the sidewalk of an adjoining street, separated from the school by a parking lot.” 462 F.2d at 964. Although we held that the speech in question did not meet the Tinker standard, id. at 970, we did not hold that Tinker necessarily can be applied to uphold the punishment of a student for purely off-campus speech.

The same is true of our decision in Sullivan v. Houston Independent School District, 475 F.2d 1071 (5th Cir. 1973). In Sullivan, the court did not apply the Tinker substantial-disruption test to assess whether school officials violated the First Amendment. The Sullivan court recognized that there is nothing per se unreasonable about requiring a high school student to submit written material to school authorities prior to distribution on campus or resulting in a presence on campus, and that it could not be seriously urged that the school’s



Internet speech, like Bell’s. Nevertheless, the majority opinion simply

assumes that those precedents apply under these circumstances without first

conducting any meaningful analysis to justify its logic. In other words, by

comparing apples to oranges, the majority opinion puts the proverbial cart

before the horse. Indeed, as explained above, the Tinker standard was

invented, in part, to counteract the consequences of speech that actually occurs

within the school environment and to take account of school officials’ competing

interest to “control conduct in the schools.” See Tinker, 393 U.S. at 507.

Specifically, in Tinker, the competing state interest was in avoiding the

disruptive consequences of speech that occurs within school. See id.

Accordingly, the Supreme Court crafted a specific level of scrutiny (the

“substantial-disruption” test) to evaluate restrictions on speech within school

that strikes a balance between the competing interests at stake. Even

assuming arguendo schools had some authority to punish students’ off-campus

speech, it is therefore simply a non sequitur for the majority opinion to

reflexively assume that the same analysis should regulate the scope of schools’

authority to punish students’ expression off campus, where the consequences

prior submission rule is unconstitutionally vague or overbroad. 475 F.2d at 1076 (citing Shanley, 462 F.2d at 960; Pervis v. LaMarque Indep. Sch. Dist., 466 F.2d 1054 (5th Cir. 1972)). Instead, the court held that the school principal had disciplined a student for failure to comply with the school's rules requiring prior submission to the school principal of all publications, not sponsored by the school, which were to be distributed on the campus or off campus in a manner calculated to result in their presence on the campus. Id. at 1073, 1076. The student was disciplined for twice selling newspapers at the entrance of the school campus, to persons entering therein, without making prior submission of the papers, and for using profanity towards the principal (“the common Anglo–Saxon vulgarism for sexual intercourse”) and in the presence of the principal’s assistants (specifically, “I don't want to go to this goddamn school anyway”). Id. at 1074. Thus, notwithstanding the Sullivan court’s references to Tinker in that decision, that opinion did not hold that the Tinker substantial-disruption test applies to off-campus speech.

In sum, contrary to its suggestion that its decision logically follows from our prior precedents, the majority’s opinion today is the first time our circuit has ever held that school officials may punish students’ purely off-campus speech pursuant to the Tinker framework.



of the speech in question and the constitutional interests at stake are simply

not the same as in Tinker.

The majority opinion’s flawed logic in this regard stems naturally from

a more fundamental error: the majority opinion fails to take seriously the

significance of the various constitutional interests that are implicated by its

decision to expand Tinker’s reach. As detailed above, the particular facts of

this case principally concern the First Amendment right of students to speak

out on “matters of public concern” when they are away from school by utilizing the unrivaled power of the Internet to make those messages heard. But

narrowly focusing on this issue alone ignores the constellation of other

constitutional interests that the majority opinion will negatively impact. For

example, even when their off-campus expression does not have a “political” or

“religious” dimension, children still maintain “significant” First Amendment

rights, Brown, 131 S. Ct. at 2735–36, which indisputably include a right to

express disrespect or disdain for their teachers when they are off campus. See

Kime v. United States, 459 U.S. 949, 951 (1982) (“[T]he First Amendment does

not permit a legislature to require a person to show his respect for the flag by

saluting it. The same constitutional principle applies when the legislature,

instead of compelling respect for the flag, forbids disrespect.”). Further, for

purposes of the First Amendment, it is simply irrelevant whether prevailing

social mores deem a child’s disrespect for his teacher to be contemptible. “The

history of the law of free expression is one of vindication in cases involving

speech that many citizens may find shabby, offensive, or even ugly.” See

United States v. Playboy Entertainment Grp., 529 U.S. 803, 826 (2000).

Moreover, the majority opinion’s extension of Tinker to off-campus

speech additionally burdens the long-established constitutional interest of

parents in the rearing of their children. The Supreme Court has “consistently



recognized that the parents’ claim to authority in their own household to direct

the rearing of their children is basic in the structure of our society.” Ginsberg

v. New York, 390 U.S. 629, 639 (1968); see also, e.g., Troxel v. Granville, 530

U.S. 57, 65 (2000) (observing that “the interest of parents in the care, custody,

and control of their children . . . is perhaps the oldest of the fundamental liberty

interests recognized by the Court”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 535

(1925) (“The child is not the mere creature of the state; those who nurture him

and direct his destiny have the right, coupled with the high duty, to recognize

and prepare him for additional obligations.”). This fundamental right of

parents indisputably includes the right to inculcate their children with

ideologies and values that the state or mainstream society may consider

repugnant. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (holding that

a war-era law banning teaching of German language violated parents’

substantive due process rights); accord Morse, 551 U.S. at 424 (Alito, J.,

concurring) (observing that “[i]t is a dangerous fiction to pretend that parents

simply delegate their authority—including their authority to determine what

their children may say and hear—to public school authorities”). The majority

opinion’s extension of the Tinker framework will inevitably frustrate this

constitutional right, because school officials will hereinafter be empowered to

supplant parents’ control over their children’s off-campus speech that is critical

of their teachers.

In addition, authorizing schools to regulate students’ off-campus speech

likewise burdens the constitutional interest of fellow citizens in hearing

students’ off-campus speech. Courts have long recognized that the First

Amendment protects not only the right to speak but also the right to receive

speech from others. See, e.g., First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765,

783 (1978) (stating that the “First Amendment . . . afford[s] public access to



discussion, debate, and the dissemination of information and ideas”); Martin

v. City of Struthers, 319 U.S. 141, 143 (1943) (explaining that the First

Amendment “embraces the right to distribute literature . . . and necessarily

protects the right to receive it”); Rossignol v. Voorhaar, 316 F.3d 516, 522 (4th

Cir. 2003) (“The First Amendment . . . protects both a speaker’s right to

communicate information and ideas to a broad audience and the intended

recipients’ right to receive that information and those ideas.” (emphasis in

original)). The facts of the instant case poignantly illustrate how the

suppression of students’ off-campus speech will burden the First Amendment

right of other citizens to receive that speech. As detailed above, Bell authored

and publicized his rap song in an effort to raise awareness of a crucial issue to

members of his community, viz., the sexual harassment of female students by

male school officials. Receiving this information would be critically important

to community members, particularly parents of female students at Itawamba,

in order to ensure that such conduct ceased and did not recur.19 Nevertheless,

by endorsing the School Board’s punishment of Bell, the majority’s opinion will

empower school officials to censor other students’ efforts to inform fellow

citizens of information that they have the right—and the urgent need—to

receive. Cf. Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (Brennan,

J. concurring) (“The dissemination of ideas can accomplish nothing if otherwise

willing addressees are not free to receive and consider them. It would be a

barren marketplace of ideas that had only sellers and no buyers.”). Exacerbating the violence committed against these constitutional

interests is the unprecedented amount of deference that the majority opinion

19 As explained above, allegations that coaches sexually harassed students were nothing new at Itawamba Agricultural High School when Bell composed his rap song. In 2009, Itawamba coach Bobby Hill was arrested and accused of sending sexually explicit text messages to a minor student.



affords school boards in disciplining off-campus speech pursuant to Tinker.

Again, Maj. Op. p. 27, and again, Maj. Op. p. 28, and again, Maj. Op. p. 29, the

majority opinion emphasizes the extent of “deference” that, in its view, courts

are required to provide school board disciplinary decisions under Tinker.

Contrary to the majority opinion’s approach, however, we do not “defer” to

schools in interpreting and applying the Constitution. “The authority

possessed by the State to prescribe and enforce standards of conduct in its

schools, although concededly very broad, must be exercised consistently with

constitutional safeguards.” Goss v. Lopez, 419 U.S. 565, 574 (1975). Further,

while it is true that Tinker “is not a difficult burden,” Cash, 585 F.3d at 222

(internal quotation marks omitted), this is the very reason that we must not

apply Tinker to off-campus speech, like Bell’s. Otherwise, armed with the

comfort that courts will simply defer to their decisions, schools will largely have

carte blanche to regulate students’ off-campus speech, thus significantly

burdening not only the First Amendment rights of students but also the

constitutional rights of their parents and their listeners. IV.

As explained above, the Supreme Court has not decided whether, or, if

so, under what circumstances, a public school may regulate students’ online,

off-campus speech, and it is not necessary or appropriate for the majority

opinion to anticipate such a decision here. That is because, even if Tinker were

applicable to the instant case, the evidence does not support the conclusion, as

would be required by Tinker, that Bell’s Internet-posted song substantially

disrupted the school’s work and discipline or that the school officials

reasonably could have forecasted that it would do so.

In considering the School Board’s motion for summary judgment, we are

required to view the evidence in the light most favorable to Bell, the non-



movant. See Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014) (per curiam). The

majority opinion, however, wholly disclaims this duty by ignoring material

facts and refusing to draw inferences in Bell’s favor—particularly those facts

and inferences clearly evincing that Bell’s song was not and could not be

regarded as a threat. For example, Bell has been an aspiring musician since

he was a young boy. He began writing lyrics as a child and started to pursue

a musical career in earnest while in his teens. Like many musical artists, Bell

has a stage name, “T-Bizzle,” and he regularly20 records music in a professional

studio. Indeed, the very rap that gave rise to this case was recorded at a

recording studio off campus called “Get Real Entertainment” records. As he

explained to the Disciplinary Committee, Bell considers himself “an artist,”

and, as explained above, he originally composed and publicized the song in an

effort to “speak out” on and raise awareness of an important issue in his

community, i.e., sexual harassment of students. Moreover, consistent with his

musical aspirations, Bell explained that the version of the song posted to

YouTube was also intended to attract the attention of record labels. Further,

the screenshot of Bell’s Facebook page reveals that his friends who commented

on the song viewed it as the product of Bell’s musical talent as a rap musician

rather than a threat of violence (e.g., “Hey, don't forget me when you're famous”

and “Lol . . . been tellin you since we was little . . . you got all the talent in the

world . . .”). In addition, no one—neither Wildmon, Rainey, nor any other

teacher or school official—testified that s/he thought Bell, himself, subjectively

intended to cause anyone to fear that Bell personally would harm any person.

Nor was there any evidence that Bell was a dangerous person or that he had

ever engaged in violent or unlawful conduct. Although Bell in his rap song

20 “Once a week,” if possible.



referred to a firearm, the evidence does not reflect that Bell had ever owned,

possessed, or had any actual experience with firearms. Except for a single

tardiness, Bell had an unblemished school conduct record. These crucial facts

not only impeach the School Board’s contention that Bell’s song could

reasonably be perceived as a legitimate threat of violence, but also illuminate

the fallacies in the majority opinion’s comparison between this case and other

circuit decisions that have condoned punishment for intentionally violent

student speech.21

Moreover, the majority opinion likewise either ignores or glosses over

other relevant evidence tending to show that school officials did not consider

Bell’s song threatening but instead punished him merely because they did not

like the content of his speech. For example, during the closing remarks of the

21 For example, the majority opinion compares Bell’s rap song to the potential violence “signaled” in Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007) and LaVine v. Blaine School District, 257 F.3d 981, 987 (9th Cir. 2001). But even a cursory comparison between this case and the facts of those cases reveals the majority opinion’s flawed logic. In Ponce, a student brought to campus a private diary, which was written in the first-person narrative, and showed its contents to a classmate. 508 F.3d at 766. The diary detailed the plan of his “pseudo-Nazi” group to conduct coordinated “Columbine-style” shootings at his school and at other schools in the district. Id. As the Ponce opinion explains:

The notebook describes several incidents involving the pseudo-Nazi group, including one in which the author ordered his group “to brutally injure two homosexuals and seven colored” people and another in which the author describes punishing another student by setting his house on fire and “brutally murder[ing]” his dog. The notebook also details the group's plan to commit a “[C]olumbine shooting” attack on Montwood High School or a coordinated “shooting at all the [district's] schools at the same time.” At several points in the journal, the author expresses the feeling that his “anger has the best of [him]” and that “it will get to the point where [he] will no longer have control.” The author predicts that this outburst will occur on the day that his close friends at the school graduate.

Id. Likewise, in LaVine, a student brought to campus a poem written in the first person describing how the narrator murdered without remorse 28 people at his school and which ominously concluded with the narrator’s prediction that he “may strike again.” LaVine, 257 F.3d at 983–84.



Disciplinary Committee meeting, one member of the committee provided the

following admonition to Bell:

I would say censor your material. . . . Because you are good [at rapping], but everybody doesn’t really listen to that kind of stuff. So, if you want to get [] your message out to everybody, make it where everybody will listen to it. . . . You know what I’m saying? Censor that stuff. Don’t put all those bad words in it. . . . The bad words ain’t making it better. . . Sometimes you can make emotions with big words, not bad words. You know what I’m saying? . . . Big words, not bad words. Think about that when you write your next piece.

The school’s censorial focus on the “bad words” in Bell’s song can also be

gleaned from the transcript of the preliminary-injunction hearing:

School Board Lawyer: You realized what you had done in publishing this song, while it may be, in your perception, an artistic endeavor, was filthy; and it was filled with words like fuck, correct? Bell: Yes, sir.

Further, although the majority opinion emphasizes Wildmon’s testimony that

Bell’s rap song allegedly scared him, the majority opinion refuses to

acknowledge that Rainey testified that he viewed the song as “just a rap” and

that “if [he] let it go, it will probably just die down.” In addition to ignoring

these material facts, the majority opinion likewise refuses to draw obvious

inferences from the record which further evince the fact that school officials

did not consider Bell’s song to be threatening in nature. For example, in sharp

contrast to other cases in which courts have upheld discipline for a student’s

purportedly “violent” speech,22 nothing in the record reflects that school

officials ever contacted law enforcement about Bell’s song. To the contrary,

Bell’s principal drove him home that day, and he thereafter was allowed to

22 See, e.g., Ponce, 508 F.3d at 767; Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1065–66 (9th Cir. 2013); LaVine, 257 F.3d at 985.



return to classes. Later, when Bell was suspended pending the outcome of the

Disciplinary Committee hearing, he nevertheless was allowed to remain

unattended in the school commons for the remainder of the day. These are

simply not the actions of school officials who seriously or reasonably believe a

student poses a threat of violence to school officials.

Had the majority opinion properly reviewed all the relevant facts and

drawn the clear inferences therefrom, it would have been compelled to conclude

that the evidence here does not support a finding, as would be required by

Tinker, that a “substantial disruption” occurred or that school officials

reasonably could have “forecast” a substantial disruption as a result of Bell’s

rap. 393 U.S. at 514. As an initial matter, the evidence plainly shows that

there was no commotion, boisterous conduct, interruption of classes, or any

lack of order, discipline and decorum at the school, as a result of Bell’s posting

of his song on the Internet. Cf. Shanley, 462 F.2d at 970 (“Disruption in fact is

an important element for evaluating the reasonableness of a regulation

screening or punishing student expression.”). In fact, at the preliminary

injunction hearing, Wildmon explained that his students “seem[ed] to act

normal” after Bell’s rap was released, and Rainey testified that most of the talk

amongst students had not been about Bell’s song but rather about his

suspension and transfer to alternative school. Aside from the single instance

when Wildmon requested a student play the song for him, there was no

evidence that any student played the song at school. Indeed, school computers

blocked Facebook, and cellphones were prohibited, which decreased the

likelihood that students could access the song on campus. Further, Bell

testified that he never encouraged students or staff to listen to the song at

school, and there is no evidence to the contrary. Tellingly, when asked if she

could point to any disruption at the school as a result of Bell’s song, the



superintendent referred only to the fact that the coaches said that they had

altered their “teaching styles” in order to avoid any appearance of initiating or

engaging in sexual relationships or harassment with female students.23 Yet,

neither the superintendent nor the coaches described how this alleged change

in “teaching styles” had substantially harmed their ability to teach their

assigned courses. And, in any event, it is self-evident that a teacher’s effort to

avoid the appearance that he is engaging in sexual relationships with students

should be deemed a dictate of the classroom and not a disruption of it.24 In

sum, even assuming arguendo that Tinker could be applied to Bell’s speech in

this case, the School Board failed to satisfy its burden under the “substantial-

disruption” framework.

In reaching the opposite conclusion, however, the majority opinion

reasons that Bell’s “threatening, intimidating, and harassing language . . .

could be forecast by [school officials] to cause a substantial disruption.” See

Maj. Op. p. 31. But, the “evidence” that the majority opinion cites for this

conclusion is, at the very best, sorely lacking. For example, the majority

opinion emphasizes that Wildmon and some unnamed “third parties”25

purportedly perceived Bell’s rap song as threatening. See Maj. Op. p. 31. Yet,

23 For example, Wildmon testified: “I tried to make sure, you know, if I'm teaching, and if I'm scanning the classroom, that I don't look in one area too long. I don't want to be accused of, you know, staring at a girl or anything of that matter.” Rainey testified that he no longer felt he could be as “hands on” with his female members of the track team, and thus “sometimes I tell the boys to go and work with the girls.”

24 Even assuming arguendo these changes in the coaches’ teaching and coaching styles

could be classified as “disruptions,” the School Board has not presented any evidence to support a finding that such disruptions were “substantial,” as required by Tinker.

25 During a seconds-long aside at the Disciplinary Committee hearing, Bell simply

alluded to such statements by third parties. Neither Bell nor anyone else provided any details whatsoever about these third parties, nor did he specify whether he heard these statements himself or via a third party.



the majority opinion fails to apprehend that an individual’s perception of

speech is not necessarily tantamount to a rational assessment of that speech

nor a valid basis for concluding that such speech is “unprotected” under the

First Amendment. Indeed, regardless of how some individuals might view

Bell’s speech, no reasonable listener could perceive Bell’s lyrics as threats in

light of the particular context; nor did the particular listeners here. See United

States v. Jeffries, 692 F.3d 473, 480 (6th Cir. 2012) (“A reasonable listener

understands that a gangster growling ‘I’d like to sew your mouth shut’ to a

recalcitrant debtor carries a different connotation from the impression left

when a candidate uses those same words during a political debate. And a

reasonable listener knows that the words ‘I’ll tear your head off’ mean

something different when uttered by a professional football player from when

uttered by a serial killer.”). Critically, the speech at issue in this case occurred

in a rap song, a musical genre in which hyperbolic and violent language is

commonly used in order to convey emotion and meaning—not to make real

threats of violence. See, e.g., Andrea L. Dennis, Poetic (In)Justice? Rap Music

Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. and Arts 1, 22

(2007). Further, as detailed above, Bell is a long-aspiring rapper; he composed

the song in a professional studio; and he publically broadcast the song to raise

public awareness and to attract the attention of record labels. These crucial

contextual facts reveal that Bell’s song was just that: a song, authored by a

young and aspiring musical artist—not the calling card of a would-be killer.

The majority opinion therefore errs by relying upon unsubstantiated and

unreasonable beliefs that Bell’s song was “threatening” in order to support its

conclusion that the School Board satisfied its burden under Tinker. Accord

Cash, 585 F.3d at 221–22 (observing that school “[o]fficials must base their

decisions on fact, not intuition”) (internal quotation marks omitted).



For additional support that Tinker is satisfied, the majority opinion also

emphasizes the wording of the School Board’s Discipline-Administrative

Policy. See Maj. Op. p. 31. Specifically, the majority opinion derives meaning

from the parallels between Tinker’s “substantial disruption” framework and

the School Board’s decision to place the heading “SEVERE DISRUPTIONS” above twenty-one different disciplinary “offenses,” one of which is the school’s

prohibition on “[h]arassment, intimidation, or threatening other students

and/or teachers.” Under the policy, other “severe disruptions” include, inter

alia, “stealing,” “cutting classes,” and “profanity, or vulgarity (to include acts,

gestures, or symbols directed at another person.)” According to the majority

opinion, this “policy demonstrates an awareness of Tinker’s substantial-

disruption standard,26 and the policy’s violation can be used as evidence

supporting the reasonable forecast of a future substantial disruption.” The

majority opinion’s reasoning in this regard is flawed. As an initial matter, this

policy nowhere states that it applies to student conduct or speech that, like

Bell’s, occurs away from school or school-related activities. In this respect, the

policy is facially distinguishable from those on-campus policies in Morse and

Fraser to which the majority opinion analogizes. Moreover, however, the

majority opinion’s logic is entirely circular. The very task before our court is

determining whether the School Board’s decision to discipline Bell under a

school policy comported with constitutional dictates. According to the majority

opinion, however, the School’s Board’s decision to discipline Bell under a school

policy is evidence that the punishment comported with constitutional dictates.

Contrary to the majority opinion’s assertions otherwise, this is prototypical

ipse dixit.

26 The majority opinion cites no evidence to substantiate that the somewhat parallel language is anything more than a mere coincidence.



V.

“[A] ‘function’ of free speech under our system of government is to invite

dispute. It may indeed best serve its high purpose when it induces a condition

of unrest, creates dissatisfaction with conditions as they are, or even stirs

people to anger.” Cox v. Louisiana, 379 U.S. 536, 551–52 (1965). By raising

awareness of high school athletic coaches’ sexual misconduct toward minor

female students, Taylor Bell’s rap song had this exact effect, and amongst those

most “stir[red] to anger” were Itawamba school officials. The First Amendment

prohibited Itawamba from expressing that anger by punishing Bell for the

content of his speech. See Barnette, 319 U.S. at 637 (“The Fourteenth

Amendment . . . protects the citizen against the State itself and all of its

creatures—Boards of Education not excepted.”). “If there is a bedrock principle

underlying the First Amendment, it is that the government may not prohibit

the expression of an idea simply because society finds the idea itself offensive

or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). Indeed, “the

point of all speech protection . . . is to shield just those choices of content that

in someone’s eyes are misguided, or even hurtful.” Hurley, 515 U.S. at 574. The

majority opinion, however, forsakes its duty to uphold this most elementary

and important of our Constitution’s guarantees.

In its conclusion, the majority opinion observes that the “mission” of

schools is “to educate.” Maj. Op. p. 32. Yet, the majority opinion fails to

apprehend the breadth of what an “education” encompasses. As the Supreme

Court has explained, “[t]he vigilant protection of constitutional freedoms is

nowhere more vital than in the community of American schools.” Shelton v.

Tucker, 364 U.S. 479, 487 (1960). Teachers are “charge[d] . . . with the task of

[i]mbuing their students with an understanding of our system of democracy.”

New Jersey v. T.L.O., 469 U.S. 325, 354 (1985) (Brennan, J., concurring in part



and dissenting in part). “That they are educating the young for citizenship is

reason for scrupulous protection of Constitutional freedoms of the individual,

if we are not to strangle the free mind at its source and teach youth to discount

important principles of our government as mere platitudes.” Barnette, 319

U.S. at 637. “[E]ducation prepares individuals to be self-reliant and self-

sufficient participants in society.” Wisconsin v. Yoder, 406 U.S. 205, 221

(1972). Accordingly, “students must always remain free to inquire, to study

and to evaluate, to gain new maturity and understanding; otherwise our

civilization will stagnate and die.” Sweezy v. New Hampshire, 354 U.S. 234,

250 (1957).

Viewed in the light of these longstanding principles, Bell’s song was not

a disruption of school activities but rather was an effort to participate as a

citizen in our unique constitutional democracy by raising awareness of a

serious matter of public concern. Yet, rather than commending Bell’s efforts,

the Itawamba County School Board punished him for the content of his speech,

in effect teaching Bell that the First Amendment does not protect students who

challenge those in power. The majority opinion teaches that same mistaken

lesson to all the children in our Circuit. Indeed, in concluding that the First

Amendment officially condones Bell’s censoring and punishment by the School

Board, instead of safeguarding his freedom of speech, the majority opinion

undermines the rights of all students and adults to both speak and receive

speech on matters of public concern through the Internet.

For these reasons, I respectfully and earnestly dissent.



EDWARD C. PRADO, Circuit Judge, dissenting:

I agree with Judge Dennis’s dissent that Bell’s rap song constitutes

expressive speech protected by the First Amendment and that the school’s

discipline for that speech violated the First Amendment under existing

Supreme Court precedent. I therefore respectfully dissent and join Judge

Dennis’s dissent in part.1

I write separately because off-campus online student speech is a poor fit

for the current strictures of First Amendment doctrine, which developed from

restrictions on other media, and I hope that the Supreme Court will soon give

courts the necessary guidance to resolve these difficult cases. See David L.

Hudson, Jr., The First Amendment: Freedom of Speech § 7:6 (2012) (“[T]he next

frontier in student speech that the U.S. Supreme Court will explore is online

speech.”). This issue has divided the circuits and state supreme courts. Some

have concluded that the Tinker standard categorically does not apply to online

off-campus speech. See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d

915, 937 (3d Cir. 2011) (en banc) (Smith, J., concurring) (noting that “[l]ower

courts . . . are divided on whether Tinker’s substantial-disruption test governs

students’ off-campus expression”); see also Thomas v. Bd. of Ed., Granville

1 I do not join Part I of Judge Dennis’s dissent. Unlike the dissent, I would conclude that speech is presumptively protected by the First Amendment unless it fits within a specific category of unprotected speech—regardless of the subject matter of the speech. Thus, I would not extend the doctrinal distinction between private speech and speech on a matter of public concern from the torts and public-employment contexts into the student-speech context.

I also do not join Part II(B) of the dissent. I agree with the dissent’s larger point that the majority opinion’s standard is vague and will prove difficult to apply; however, I am not as sure as the dissent that the Supreme Court’s 1997 decision in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), remains indicative of how the Court would resolve this case today. The Internet has changed dramatically since 1997, so much so that I wonder whether the Court’s views on online student speech have evolved to take into account the potential for harm that simply did not exist to the same degree when Reno was decided eighteen years ago. See, e.g., J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 863 (Pa. 2002) (observing that “the advent of the Internet has complicated analysis of restrictions on speech”).



Cent. Sch. Dist., 607 F.2d 1043, 1053 n.18 (2d Cir. 1979) (“[W]e believe that

[the] power [to regulate expression] is denied to public school officials when

they seek to punish off-campus expression simply because they reasonably

foresee that in-school distribution may result.”). Some courts have assumed

without deciding that Tinker applies. See, e.g., J.S., 650 F.3d at 928–31

(majority op.). And some courts have held that Tinker applies to online off-

campus speech if “it was foreseeable . . . [that the] conduct would reach the

school via computers, smartphones, and other electronic devices,” Kowalski v.

Berkeley Cnty. Schs., 652 F.3d 565, 574 (4th Cir. 2011), or if there is a

“sufficient nexus between the website and the school campus to consider the

speech as occurring on campus,” J.S. v. Bethlehem Area Sch. Dist., 807 A.2d

847, 865 (Pa. 2002). I am unaware of a circuit or state supreme court going as

far as the majority in this case and holding that threatening, harassing, or

intimidating online speech that occurred purely off campus may be prohibited

or punished. The majority’s holding appears to depart from the other, already

divided circuits in yet another direction.

Bell’s speech does not fit within the currently established, narrow

categories of unprotected speech, and I would wait for the Supreme Court to

act before exempting a new category of speech from First Amendment

protection. As we previously stated in Porter v. Ascension Parish School Board,

the Tinker standard only applies to substantially disruptive “student speech

on the school premises.” 393 F.3d 608, 615 (5th Cir. 2004) (emphasis added)

(internal quotation marks omitted); see also id. at 615 n. 22 (criticizing other

courts for “[r]efusing to differentiate between student speech taking place on-

campus and speech taking place off-campus”). Schools officials may also punish

speech that advocates illegal drug use and that takes place at off-campus

school-sanctioned activities during school hours. Morse v. Frederick, 551 U.S.



393, 400–01 (2007) (citing Porter, 393 F.3d at 615 n.22); see also id. at 425

(Alito, J., concurring) (reasoning that the location of the speech matters and

that, “due to the special features of the school environment, school officials

must have greater authority to intervene before speech leads to violence”). But

this exception does not apply to purely off-campus speech. See id. at 405

(majority op.) (“Had Fraser delivered the same speech in a public forum outside

the school context, it would have been protected.”).

Moreover, Bell’s speech does not fall within the First Amendment

exception we have previously recognized for student speech that threatens

“violence bearing the stamp of a well-known pattern of recent historic activity:

mass, systematic school-shootings in the style that has become painfully

familiar in the United States.” Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765,

770–71 (5th Cir. 2007) (emphasis added). Indeed, in Ponce, we emphasized the

narrow scope of this exception, concluding that this exception does not include

“threats of violence to individual teachers[, which should be] analyzed under

Tinker” or not at all, id. at 771 n.2 (emphasis added), meaning that threatening

language about an individual teacher is not within the Morse exception and

may be punished only if it is either “on school premises” within the meaning of

Tinker, Porter, 393 F.3d at 615, or if it constitutes a true threat. We reasoned:

“Such threats [to teachers], because they are relatively discrete in scope and

directed at adults, do not amount to the heightened level of harm that was the

focus of both the majority opinion and Justice Alito’s concurring opinion in

Morse.” Ponce, 508 F.3d at 771 n.2 (citing Boim v. Fulton Cnty. Sch. Dist., 494

F.3d 978 (11th Cir. 2007); Wisniewski v. Bd. of Educ. of the Weedsport Cent.

Sch. Dist., 494 F.3d 34 (2d Cir. 2007)). “The harm of a mass school shooting is,

by contrast, so devastating and so particular to schools that Morse analysis is

appropriate.” Id. (emphasis added).



In this case, Bell’s rap song was performed and broadcasted entirely off-

campus, and the song described violence directed at individual teachers—not

a Columbine-type mass school shooting. Therefore, Bell’s rap does not fall

within the Tinker or the Morse categories of unprotected speech under our

Circuit’s decisions in Porter and Ponce. Further, in the context of expressive

rap music protesting the sexual misconduct of faculty members, no reasonable

juror could conclude that Bell’s rap lyrics constituted a “true threat.” See

Virginia v. Black, 538 U.S. 343, 359 (2003) (“‘True threats’ encompass [only]

those statements where the speaker means to communicate a serious

expression of an intent to commit an act of unlawful violence to a particular

individual or group of individuals.”). Therefore, I would reverse the district

court and render judgment for Bell.

I therefore agree with Judge Dennis’s dissent that our Circuit should

hesitate before carving out a new category of unprotected speech.

Even so, I share the majority opinion’s concern about the potentially

harmful impact of off-campus online speech on the on-campus lives of students.

The ever-increasing encroachment of off-campus online and social-media

speech into the campus, classroom, and lives of school students cannot be

overstated. See Kowalski, 652 F.3d at 567–69, 571 (confronting a situation in

which one high-school student created a webpage dedicated to spreading

rumors about the sexually transmitted disease of another student and her

supposed sexual promiscuity, thereby “singl[ing] out [that student] for

harassment, bullying and intimidation”). Ultimately, the difficult issues of off-

campus online speech will need to be addressed by the Supreme Court.

For the foregoing reasons, I respectfully dissent.



HAYNES, Circuit Judge, dissenting in part:

I respectfully dissent from the portion of the majority opinion affirming

the district court’s grant of summary judgment in favor of the School Board on

Bell’s claim.1 I conclude that the majority opinion greatly and unnecessarily

expands Tinker to the detriment of Bell’s First Amendment rights. I would

reverse the district court’s grant of summary judgment to the School Board and

remand for further proceedings on those matters for substantially the same

reasons set forth in Section III of the original panel majority opinion. See Bell,

774 F.3d at 290–303.

1 Credibility and inferences matter here, so I would not reverse the denial of Bell’s summary judgment motion.



JAMES E. GRAVES, JR., Circuit Judge, dissenting:

I join Judge Dennis’s dissenting opinion. Like Judge Dennis, my view is

that the Tinker framework was not intended to apply to off-campus speech. I

recognize, however, that current technology serves to significantly blur the

lines between on-campus and off-campus speech. In the light of this

undeniable reality, and in the alternative, I would apply a modified Tinker

standard to off-campus speech. My Tinker-Bell standard would begin with the

Tinker substantial disruption test. See Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503 (1969); see also Shanley v. Ne. Indep. Sch. Dist., 462 F.2d

960 (5th Cir. 1972). It would further include a nexus prong that is derived

most significantly from the Fourth Circuit’s nexus test in Kowalski v. Berkeley

County Schools, 652 F.3d 565 (4th Cir. 2011). The nexus prong would

incorporate the important factors, considered by other appellate courts, of

foreseeability and the speech’s predominant message.

This standard would protect the First Amendment rights of students to

engage in free expression off campus, while also recognizing that school

officials should have some ability, under very limited circumstances, to

discipline students for off-campus speech. Mindful of these core principles and

concerns, I would apply the following test.

In order for a school to discipline a student for off-campus

speech, the school must:

(1) provide evidence of facts which might reasonably have led school authorities to forecast a substantial disruption OR evidence of an actual, substantial disruption;1 AND

(2) demonstrate a sufficient nexus between the speech and the school’s pedagogical interests that would justify the

1 Tinker, 393 U.S. at 509, 513–14; see also Shanley, 462 F.2d at 974 (“We emphasize . . . that there must be demonstrable factors that would give rise to any reasonable forecast by the school administration of ‘substantial and material’ disruption of school activities before expression may be constitutionally restrained.”).



school’s discipline of the student.2 In this regard, I would consider three non-exclusive factors:

a. whether the speech could reasonably be expected to reach the school environment.3

b. whether the school’s interest as trustee of student well-being4 outweighs the interest of respecting the traditional parental role5 in disciplining a student for off-campus speech . . .

i. giving particular weight to evidence, experiential or otherwise (like the bullying research in the Fourth Circuit’s Kowalski decision),6 which indicates that particular off-campus speech has a unique and proven adverse impact on students and the campus environment.

c. whether the predominant message of the student’s speech is entitled to heightened protection.7

2 See Kowalski, 652 F.3d at 573 (“There is surely a limit to the scope of a high school’s interest in the order, safety, and well-being of its students when the speech at issue originates outside the schoolhouse gate. But we need not fully define that limit here, as we are satisfied that the nexus of [the student’s] speech to [the high school’s] pedagogical interests was sufficiently strong to justify the action taken by school officials in carrying out their role as the trustees of the student body’s well-being.”).

3 See Wisniewski v. Bd. of Educ., 494 F.3d 34, 38–39 (2d Cir. 2007), cert. denied, 128 S. Ct. 1741 (2008) (expanding the reach of Tinker to include off-campus speech that is reasonably foreseeable to “come to the attention of school authorities”); Doninger v. Niehoff, 527 F.3d 41, 50 (2d Cir. 2008) (applying Tinker to off-campus speech where the speech is reasonably foreseeable to reach the school property); D.J.M. v. Hannibal Pub. Sch. Dist., 647 F.3d 754, 766 (8th Cir. 2011) (same, where speech was reasonably foreseeable to be brought to the attention of school authorities).

4 See Kowalski, 652 F.3d at 573. 5 Our court has held in high regard the traditional role of parents to discipline their

children off campus. See Shanley, 462 F.2d at 964 (“It should have come as a shock to the parents of five high school seniors . . . that their elected school board had assumed suzerainty over their children before and after school, off school grounds, and with regard to their children’s rights of expressing their thoughts.”); id. at 966 (explaining that the parents filed the lawsuit in “objecti[on] to the school board’s bootstrap transmogrification into Super-Parent”).

6 Kowalski, 652 F.3d at 572. 7 See Section I of Judge Dennis’s dissenting opinion; see also Bell v. Itawamba Cnty.

Sch. Bd., 774 F.3d 280, 299 n.46 (5th Cir. 2014), rev’d en banc.



In my view, if this test were applied to the facts of this case, the school’s

discipline of Bell would clearly fail. For this additional, alternative reason, I

dissent.



Taylor Bell v. Itawamba County School District

Facts

• Bell created and posted on the weekend, using his own computer (off-campus speech), a rap recording containing vulgar, threatening and violent language directed toward two high school teacher/coaches (first on publically accessible Facebook and then on YouTube)

• The recording alleged misconduct against female students by the coaches

Facts

• In rap song, Bell used n word, f word, other profanities, accusing the coaches of misconduct with female students (court described it as “incredibly profane and vulgar”

• Song contained at least four instances of threatening, harassing and intimidating language against the coaches (“betta watch your back,” “going to hit you with my rueger,” “going to get a pistol down your mouth,” and “cap that n.”


Facts

• Bell admitted in disciplinary hearing that he intended for the recording to be viewed and heard by students

• Made the recording because he believed that his complaints would be ignored by school officials

• Bell was suspended for seven days and then placed in the alternative school for the remainder of the nine week grading period (approximately six weeks)

Legal Action

• Bell filed a lawsuit claiming his First Amendment right to free speech had been violated

• The Federal District Court ruled for the school district, concluding that the rap recording constituted “harassment and intimidation of teachers and possible threats against teachers and threatened, harassed and intimidated school employees.”

Legal Action

• The Court also found that the rap recording “in fact caused a material and/or substantial disruption at school and … it was reasonably foreseeable to school officials the song would cause such a disruption.”

• On appeal the Fifth Circuit, a divided panel (2-1) held that the school district violated Bell’s First Amendment right by disciplining him based on the language in the rap recording.


Legal Action

• The school district asked for an en-banc review.

• Issue: Whether, consistent with the requirements of the First Amendment, off-campus speech directed intentionally at the school community and reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher satisfies the Tinkerstandard for restricting student speech, based on a reasonable forecast of a substantial disruption.

Legal Action

• Court held: Tinker applies to the off-campus speech at issue, that a school official reasonably could find that Bell’s rap recording threatened, harassed, and intimidated the two teachers and a substantial disruption reasonably could have been forecast.

Points Made by the Court

• When Tinker was decided, the Internet, cellphones, smartphones and digital social media did not exist.

• In wake of school shootings, school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights.



• Off-campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free speech rights and a school official’s duty to maintain discipline and protect the school community.

• Administrators must be vigilant and take seriously any statements by students resembling threats of violence.


• The Court applied Tinker because of Bell’s admittedly intentionally directing at the school community his rap recording containing threats to, and harassment and intimidation of, two teachers.

• After determining that Tinker applied in this case, the next question the Court had to answer was whether Bell’s recording either caused an actual disruption or reasonably could be forecast to cause one.


• The Court concluded that the school board’s finding that the rap recording threatened, harassed and intimidated the two coaches was objectively reasonable.

• School authorities are not required expressly to forecast a “substantial or material disruption”; rather, courts determine the possibility of a reasonable forecast based on the facts in the record.



• The Court then considered whether the school board’s disciplinary action against Bell, based on its finding he threatened, harassed, and intimidated two coaches, satisfied Tinker.

• The Court noted that the school board’s response was measured—temporarily suspending Bell and placing him in an alternative education program for about six weeks.


• The Court noted that “threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability to educate. It disrupts, if not destroys, the discipline necessary for an environment in which education can take place. In addition, it encourages and incites other students to engage in similar disruptive conduct. Moreover, it can even cause a teacher to leave that profession. In sum, it disrupts, if not destroys, the very mission for which schools exist– to educate.”

But Be Careful

• The opinion and concurring opinions consist of 42 pages.

• The dissent consists of 58 pages.

• This case is not a license to discipline for off-campus misconduct of any kind.

• Work carefully with your board attorney on any off-campus misconduct matter to ensure proper steps are taken.


U.S. Department of Justice Civil Rights Division

U.S. Department of Education Office for Civil Rights

Notice of Language Assistance

Dear Colleague Letter on the

Nondiscriminatory Administration of School Discipline

Notice of Language Assistance: If you have difficulty understanding English, you may, free of charge,

request language assistance services for this Department information by calling 1-800-USA-LEARN

(1-800-872-5327) (TTY: 1-800-877-8339), or email us at: [email protected].

Aviso a personas con dominio limitado del idioma inglés: Si usted tiene alguna dificultad en entender

el idioma inglés, puede, sin costo alguno, solicitar asistencia lingüística con respecto a esta información

llamando al 1-800-USA-LEARN (1-800-872-5327) (TTY: 1-800-877-8339), o envíe un mensaje de

correo electrónico a: [email protected].

給英語能力有限人士的通知: 如果您不懂英語，或者使用英语有困难，您可以要求獲得向大眾提

供的語言協助服務，幫助您理解教育部資訊。這些語言協助服務均可免費提供。如果您需要有關

口譯或筆譯服務的詳細資訊，請致電 1-800-USA-LEARN (1-800-872-5327) (聽語障人士專線：

1-800-877-8339),或電郵: [email protected].

Thông báo dành cho những người có khả năng Anh ngữ hạn chế:

ú . C đề m ễ í. m ố b m ề

, x lò ọ số 1-800-USA-LEARN (1-800-872-5327) (TTY:

1-800-877-8339), em l: [email protected].

영어 미숙자를 위한 공고: 영어를 이해하는 데 어려움이 있으신 경우, 교육부 정보 센터에 일반인

대상 언어 지원 서비스를 요청하실 수 있습니다. 이러한 언어 지원 서비스는 무료로 제공됩니다.

통역이나 번역 서비스에 대해 자세한 정보가 필요하신 경우, 전화번호 1-800-USA-LEARN (1-800-

872-5327) 또는 청각 장애인용 전화번호 1-800-877-8339 또는 이메일주소

[email protected] 으로 연락하시기 바랍니다.

Paunawa sa mga Taong Limitado ang Kaalaman sa English: Kung nahihirapan kayong makaintindi

ng English, maaari kayong humingi ng tulong ukol dito sa inpormasyon ng Kagawaran mula sa

nagbibigay ng serbisyo na pagtulong kaugnay ng wika. Ang serbisyo na pagtulong kaugnay ng wika ay

libre. Kung kailangan ninyo ng dagdag na impormasyon tungkol sa mga serbisyo kaugnay ng

pagpapaliwanag o pagsasalin, mangyari lamang tumawag sa 1-800-USA-LEARN (1-800-872-5327)

(TTY: 1-800-877-8339), o mag-email sa: [email protected].

Уведомление для лиц с ограниченным знанием английского языка: Если вы испытываете

трудности в понимании английского языка, вы можете попросить, чтобы вам предоставили

перевод информации, которую Министерство Образования доводит до всеобщего сведения. Этот

перевод предоставляется бесплатно. Если вы хотите получить более подробную информацию об

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5327) (служба для слабослышащих: 1-800-877-8339), или отправьте сообщение по адресу:

[email protected].


mailto:[email protected]







Dear Colleague Letter: Nondiscriminatory Administration of School Discipline

U.S. Department of Justice U.S. Department of Education Civil Rights Division Office for Civil Rights

January 8, 2014

Dear Colleague:

The U.S. Department of Education and the U.S. Department of Justice (Departments) are issuing

this guidance to assist public elementary and secondary schools in meeting their obligations

under Federal law to administer student discipline without discriminating on the basis of race,

color, or national origin. The Departments recognize the commitment and effort of educators

across the United States to provide their students with an excellent education. The Departments

believe that guidance on how to identify, avoid, and remedy discriminatory discipline will assist

schools in providing all students with equal educational opportunities.1

The Departments strongly support schools in their efforts to create and maintain safe and orderly

e l e me s ll w ’s s e s le e. Many schools

have adopted comprehensive, appropriate, and effective programs demonstrated to: (1) reduce

disruption and misconduct; (2) support and reinforce positive behavior and character

development; and (3) help students succeed. Successful programs may incorporate a wide range

of strategies to reduce misbehavior and maintain a safe learning environment, including conflict

resolution, restorative practices, counseling, and structured systems of positive interventions.

The Departments recognize that schools may use disciplinary measures as part of a program to

promote safe and orderly educational environments.

1 T e De me s e e e m e s De C lle e Le e s “s f e me ” e e

Off e f M eme e ’s F l lle f e G G e P es, 72 Fe . Re . 3432 (J .

25, 2007), available at http://www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf.

This and other policy guidance is issued to provide recipients with information to assist them in meeting their

obligations, and to provide members of the public with information about their rights, under the civil rights laws and

m leme e l s we e f e. T e De me s’ le l s b se se l ws. This guidance

does not add requirements to applicable law, but provides information and examples to inform recipients about how

the Departments evaluate whether covered entities are complying with their legal obligations. If you are interested

in commenting on this guidance, please send an e-mail with your comments to [email protected], or write to the

following address: Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue, S.W.,

Washington, D.C. 20202.


http://www.whitehouse.gov/sites/default/files/omb/fedreg/2007/012507_good_guidance.pdf



Regardless of the program adopted, Federal law prohibits public school districts from

discriminating in the administration of student discipline based on certain personal

characteristics. T e De me f J s e’s C l R s D s (DOJ) is responsible for

enforcing Title IV of the Civil Rights Act of 1964 (Title IV), 42 U.S.C. §§ 2000c et seq., which

prohibits discrimination in public elementary and secondary schools based on race, color, or

national origin, among other bases. T e De me f E ’s Off e f C l R s

(OCR) and the DOJ have responsibility for enforcing Title VI of the Civil Rights Act of 1964

(Title VI), 42 U.S.C. §§ 2000d et seq., and its implementing regulations, 34 C.F.R. Part 100,

which prohibits discrimination based on race, color, or national origin by recipients of Federal

financial assistance. Specifically, OCR enforces Title VI with respect to schools and other

recipients of Federal financial assistance from the Department of Education.2

The Departments initiate investigations of student discipline policies and practices at particular

schools based on complaints the Departments receive from students, parents, community

members, and others about possible racial discrimination in student discipline.3 The

Departments also may initiate investigations based on public reports of racial disparities in

student discipline combined with other information, or as part of their regular compliance

monitoring activities.

This guidance will help public elementary and secondary schools administer student discipline in

a manner that does not discriminate on the basis of race. Federal law also prohibits

discriminatory discipline based on other factors, including disability, religion, and sex.4 Those

2 The Department of Justice enforces Title VI with respect to schools, law enforcement agencies, and other

e e s f Fe e l f l ss s e f m DOJ; DOJ’s Off e f C l R s e Off e f J s e P ms

(OJP OCR) is the principal DOJ office that enforces Title VI though its administrative process. See

http://www.ojp.usdoj.gov/about/ocr/pdfs/OCR_TitleVI.pdf. DOJ also enforces Title VI upon referral from another

Federal funding agency, or through intervention in an existing lawsuit. DOJ also coordinates the enforcement of

Title VI government-wide.

3 T s e, “ e” “ l” l es e, l , l ; “ l ” “ l es” l des

l es e es; “s l” “s ls” l es eleme se s l, s l s ,

l l e l e (LE ) s e e f Fe e l f l ss s e, l e “ l e e”

school that is a e e f Fe e l f l ss s e. T e e ms “ m” “ ms” “ ms

es” “ ms es” e se ll l se se e me e e me f

e e ms “ m” “ m ” s ef e b e C l R s Res f 1987 (CRR ).

Under the CRRA, which amended Title VI, Title IX of the Education Amendments of 1972 (Title IX), and Section

504 of the Rehabilitation Act of 1973 (Section 504), e e m “ m ” e e m “ m,” e

context of a school district, mean all of the operations of a school district. 42 U.S.C. § 2000d - 4a(2)(B); 20 U.S.C.

§ 1687(2)(B); 29 U.S.C. § 794(b)(2)(B).

4 While this guidance explicitly addresses only race discrimination, much of the analytical framework laid out in this

document also applies to discrimination on other prohibited grounds. Title IV also prohibits discrimination on the

basis of sex and religion by public elementary and secondary schools. Title IX prohibits discrimination on the basis

of sex by recipients of Federal financial assistance in their education programs or activities. 20 U.S.C. §§ 1681 et

seq. Section 504 prohibits disability discrimination by recipients of Federal financial assistance, and Title II of the


http://www.ojp.usdoj.gov/about/ocr/pdfs/OCR_TitleVI.pdf


prohibitions are not specifically addressed in this guidance because they implicate separate

statutes and sometimes different legal analyses (although this guidance applies to race

discrimination against all students, including students of both sexes and students with

disabilities). Schools are reminded, however, that they must ensure that their discipline policies

and practices comply with all applicable constitutional requirements and Federal laws, including

civil rights statutes and regulations.

OVERVIEW OF RACIAL DISPARITIES IN THE ADMINISTRATION OF

SCHOOL DISCIPLINE

The Civil Rights Data Collection (CRDC),5 conducted by OCR, has demonstrated that students

of certain racial or ethnic groups6 tend to be disciplined more than their peers. For example,

African-American students without disabilities are more than three times as likely as their white

peers without disabilities to be expelled or suspended. Although African-American students

represent 15% of students in the CRDC, they make up 35% of students suspended once, 44% of

those suspended more than once, and 36% of students expelled. Further, over 50% of students

Americans with Disabilities Act of 1990 (Title II) prohibits disability discrimination by public entities, including

public school districts, in their services, programs, and activities. 29 U.S.C. § 794; 42 U.S.C. §§ 12131 et seq.

Section 504 and Title II and their implementing regulations provide certain protections when students with

disabilities are disciplined. Part B of the Individuals with Disabilities Education Act (IDEA) provides Federal funds

to State educational agencies and through them to local educational agencies to assist in the provision of special

education and related services to eligible children with disabilities. The IDEA contains specific provisions

regarding the discipline of students with disabilities who are or may be IDEA-eligible and requires an analysis of

discipline data disaggregated by race and ethnicity as well as possible review and revision of policies, practices, and

procedures. See, e.g., 20 U.S.C. §§ 1412(a)(22), 1415(k), 1418(d); 34 C.F.R. § 300.530(e)-(g). Additional

information about Part B of the IDEA is available at http://idea.ed.gov.

5 The CRDC is a mandatory data collection authorized under Title VI, Title IX, and Section 504, the regulations

implementing those statutes, and the Department of Education Organization Act, 20 U.S.C. § 3413. Since 1968, the

CRDC (formerly the Elementary and Secondary School Survey) has collected data on key education and civil rights

issues in our nation's public schools. Unless otherwise noted, statistics referenced in this letter are drawn from

unpublished (as of January 8, 2014) data collected by the CRDC for the 2011-12 school year. Additional

information and publicly available data from the CRDC can be found at http://ocrdata.ed.gov.

6 While this document addresses race discrimination against all students, including students with disabilities,

evidence of significant disparities in the use of discipline and aversive techniques for students with disabilities raises

particular concern for the Departments. For example, although students served by IDEA represent 12% of students

in the country, they make up 19% of students suspended in school, 20% of students receiving out-of-school

suspension once, 25% of students receiving multiple out-of-school suspensions, 19% of students expelled, 23% of

students referred to law enforcement, and 23% of students receiving a school-related arrest. Additionally, students

with disabilities (under the IDEA and Section 504 statutes) represent 14% of students, but nearly 76% of the

students who are physically restrained by adults in their schools.

The Departments are developing resources to assist schools and support teachers in using appropriate discipline

practices for students with disabilities.


http://idea.ed.gov/

http://ocrdata.ed.gov/


who were involved in school-related arrests or referred to law enforcement are Hispanic or

African-American.

The Departments recognize that disparities in student discipline rates in a school or district may

be caused by a range of factors. However, research suggests that the substantial racial disparities

of the kind reflected in the CRDC data are not explained by more frequent or more serious

misbehavior by students of color.7 Although statistical and quantitative data would not end an

inquiry under Title IV or Title VI, significant and unexplained racial disparities in student

discipline give rise to concerns that schools may be engaging in racial discrimination that

violates the Federal civil rights laws. For instance, statistical evidence may indicate that groups

of students have been subjected to different treatment or that a school policy or practice may

have an adverse discriminatory impact. Indeed, t e De me s’ investigations, which consider

quantitative data as part of a wide array of evidence, have revealed racial discrimination in the

administration of student discipline. For example, in our investigations we have found cases

where African-American students were disciplined more harshly and more frequently because of

their race than similarly situated white students. In short, racial discrimination in school

discipline is a real problem.

The CRDC data also show that an increasing number of students are losing important

instructional time due to exclusionary discipline.8 The increasing use of disciplinary sanctions

such as in-school and out-of-school suspensions, expulsions, or referrals to law enforcement

authorities creates the potential for significant, negative educational and long-term outcomes,

b e w s bee e me e “s l s ipeline.” Studies have

suggested a correlation between exclusionary discipline policies and practices and an array of

serious educational, economic, and social problems, including school avoidance and diminished

educational engagement;9 decreased academic achievement;

10 increased behavior problems;

11

7 See generally Michael Rocque & Raymond Paternoster, Understanding the Antecedents of the “School-to-Jail”

Link: The Relationship Between Race and School Discipline, 101 J. CRIM. L. & CRIMINOLOGY 633 (2011); Russell J.

Skiba et al., Race Is Not Neutral: A National Investigation of African American and Latino Disproportionality in

School Discipline, 40 SCH. PSYCHOL. REV 85 (2011); T. Fabelo, M.D. Thompson, M. Plotkin, D. Carmichael, M.P.

Marchbanks & E.A. Booth, Breaking Schools’ Rules: A Statewide Study of How School Discipline Relates to

Students’ Success and Juvenile Justice Involvement (Council of State Governments Justice Center, 2011); A.

Gregory & A.R. Thompson, African American High School Students and Variability in Behavior Across

Classrooms, 38 J. COMMUNITY PSYCHOL. 386 (2010); R.J. Skiba, R.S. Michael, A.C. Nardo & R.L. Peterson, The

Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment, 34 URBAN REV. 317

(2002); Michael Rocque, Office Discipline and Student Behavior: Does Race Matter? 116 AM. J. EDUC. 557 (2010).

8 Compare the 1984 CRDC National Estimations to the 2009 CRDC National Estimations for the category of

suspension-out of school.

9 Emily Arcia, Achievement and Enrollment Status of Suspended Students: Outcomes in a Large, Multicultural

School District. 38 EDUC. & URB. SOC’Y 359 (2006).

10 Id.



increased likelihood of dropping out;12

substance abuse;13

and involvement with juvenile justice

systems.14

As a result, this guidance is critically needed to ensure that all students have an equal opportunity

to learn and grow in school. Additionally, fair and equitable discipline policies are an important

component of creating an environment where all students feel safe and welcome. Schools are

safer when all students feel comfortable and are engaged in the school community, and when

teachers and administrators have the tools and training to prevent and address conflicts and

challenges as they arise. Equipping school officials with an array of tools to support positive

student behavior – thereby providing a range of options to prevent and address misconduct – will

both promote safety and avoid the use of discipline policies that are discriminatory or

inappropriate. The goals of equity and school safety are thus complementary, and together help

ensure a safe school free of discrimination.

T s e s mm zes s ls’ bl s e ess l s m the

administration of student discipline. It provides a detailed explanation of the Departments’

investigative process under Title IV and Title VI, including the legal framework within which

the Departments consider allegations of racially discriminatory student discipline practices, and

examples of school disciplinary policies and practices that may violate civil rights laws. In the

Appendix to this guidance, the Departments have provided a set of recommendations to assist

schools in developing and implementing student discipline policies and practices equitably and

in a manner consistent with their Federal civil rights obligations. These recommendations are

intended to be illustrative, not exhaustive. The Departments are available to provide technical

assistance to support school efforts to cultivate an environment in which all students are safe and

have equal educational opportunities.15

11

S.A. Hemphill, J.W. Toumbourou, T.I. Herrenkohl, B.J. McMorris & R.F. Catalano, The Effect of School

Suspensions and Arrests on Subsequent Adolescent Antisocial Behavior in Australia and the United States. 39 J.

ADOLESCENT HEALTH 736 (2006); S.A. Hemphill, T.I. Herrenkohl, S.M. Plenty, J.W. Toumbourou, R.F. Catalano &

B.J. McMorris, Pathways from School Suspension to Adolescent Nonviolent Antisocial Behavior in Students in

Victoria, Australia and Washington State, United States, 40 J. COMMUNITY PSYCHOL. 301 (2012).

12 Arcia, supra; Fabelo et al, supra; Linda M. Raffaele Mendez, Predictors of Suspension and Negative School

Outcomes: A Longitudinal Investigation, 99 NEW DIRECTIONS FOR YOUTH DEV. 17 (2003).

13 S.A. Hemphill, J. A. Heerde, T.I. Herrenkohl, J.W. Toumbourou & R.F. Catalano, The Impact of School

Suspension on Student Tobacco Use: A Longitudinal Study in Victoria, Australia, and Washington State, United

States. 39 HEALTH EDUC. & BEHAV. 45 (2012).

14 V. Costenbader & S. Markson, School Suspension: A Study with Secondary School Students. 36 J. SCH. PSYCHOL.

59 (1998); Fabelo et al, supra.

15 s e l e s s l’s bl es s e m s s es

s m ssme . M e f m b e l ble le l s s s l e OCR’s De

Colleague Letter: Harassment and Bullying (Oct. 26, 2010), available at http://www.ed.gov/ocr/letters/colleague-

201010.pdf. See also OCR’s De C lle e Le e : Sex l H ssme Sex l V le e ( . 4, 2011),


http://www.ed.gov/ocr/letters/colleague-201010.pdf



THE DEPARTMENTS’ INVESTIGATIONS AND ENFORCEMENT ACTIONS

UNDER TITLE IV AND TITLE VI

A. Legal Framework

Titles IV and VI protect students from discrimination based on race in connection with all

academic, educational, extracurricular, athletic, and other programs and activities of a school,

including programs and activities a school administers to ensure and maintain school safety and

student discipline. When schools respond to student misconduct, Titles IV and VI require that

e s l’s es se be e e ll s m m e .

These statutes cover school officials and everyone school officials exercise some control over,

whether through contract or other arrangement, including school resource officers. Schools

cannot divest themselves of responsibility for the nondiscriminatory administration of school

safety measures and student discipline by relying on school resource officers, school district

police officers, contract or private security companies, security guards or other contractors, or

law enforcement personnel. To the contrary, the Departments may hold schools accountable for

discriminatory actions taken by such parties.16

Titles IV and VI protect students over the entire course of the disciplinary process, from behavior

management in the classroom, to referral to an authority outside the classroom because of

misconduct – a crucial step in the student discipline process – to resolution of the discipline

incident. In their investigations of school discipline, the Departments have noted that the initial

efe l f s e e l’s ff e f m s s e s se

concerns, to the extent that it entails the subjective exercise of unguided discretion in which

racial biases or stereotypes may be manifested. If a school refers students for discipline because

of their race, the school has engaged in discriminatory conduct regardless of whether the student

referred has engaged in misbehavior. And even if the referrals do not ultimately lead to the

imposition of disciplinary sanctions, the referrals alone result in reduced classroom time and

academic instruction for the referred student. Furthermore, if a sanction from a discriminatory

referral be mes f e s e ’s s l e , l e ll e e e e l f

subsequent misconduct and follow the student throughout e s e ’s academic career.

Therefore, it is incumbent upon a school to take effective steps to eliminate all racial

discrimination in initial discipline referrals.

available at http://www.ed.gov/ocr/letters/colleague-201104.pdf. When addressing such harassment, a school

should consider incorporating wide-ranging strategies beyond exclusionary discipline, including, for example,

conflict resolution, restorative practices, and counseling, to help meet its obligations under Federal civil rights laws.

16 The nondiscrimination requirements of Titles IV and VI extend to conduct undertaken by entities that carry out

some or ll f e s ls’ f s “ l e eme s.” See, e.g., 34 C.F.R.

§ 100.3(b)(1), (2).




The administration of student discipline can result in unlawful discrimination based on race in

two ways: first, if a student is subjected to different treatment based on e s e ’s race, and

second, if a policy is neutral on its face – meaning that the policy itself does not mention race –

and is administered in an evenhanded manner but has a disparate impact, i.e., a disproportionate

and unjustified effect on students of a particular race. Under both inquiries, statistical analysis

regarding the impact of discipline policies and practices on particular groups of students is an

important indicator of potential violations. In all cases, however, the Departments will

es e ll ele ms es, s s e f s s s e ’s s e

discipline imposed.

1. Different Treatment

Both Title IV and Title VI prohibit schools from intentionally disciplining students differently

based on race.17

The clearest case of intentional discrimination would be a policy that was

discriminatory on its face: one that included explicit language requiring that students of one race

be disciplined differently from students of another race, or that only students of a particular race

be subject to disciplinary action.

More commonly, however, intentional discrimination occurs when a school has a discipline

policy that is neutral on its face (meaning the language of the policy does not explicitly

differentiate between students based on their race), but the school administers the policy in a

discriminatory manner or when a school permits the ad hoc and discriminatory discipline of

students in areas that its policy does not fully address.

Such intentional discrimination in the administration of student discipline can take many forms.

The typical example is when similarly situated students of different races are disciplined

differently for the same offense. Students are similarly situated when they are comparable, even

if not identical, in relevant respects. For example, assume a group of Asian-American and

Native-American students, none of whom had ever engaged in or previously been disciplined for

misconduct, got into a fight, and the school conducted an investigation. If the school could not

determine how the fight began and had no information demonstrating that students behaved

differently during the fight, e.g., one group used weapons, then the school’s decision to

discipline the Asian-American students more harshly than the Native-American students would

raise an inference of intentional discrimination.

Selective enforcement of a facially neutral policy against students of one race is also prohibited

intentional discrimination. This can occur, for example, when a school official elects to overlook

a violation of a policy committed by a student who is a member of one racial group, while

strictly enforcing the policy against a student who is a member of another racial group. It can

occur at the classroom level as well. The Departments often receive complaints from parents

17

42 U.S.C. §§ 2000c et seq.; 42 U.S.C. § 2000d; 34 C.F.R. § 100.3(a), (b)(1).



that a teacher only refers students of a particular race outside of the classroom for discipline,

even though students of other races in that classroom commit the same infractions. Where this is

true, there has been selective enforcement, even if an administrator issues the same consequence

for all students referred for discipline.

Intentional discrimination also occurs when a school adopts a facially neutral policy with the

intent to target students of a particular race for invidious reasons. This is so even if the school

punishes students of other races under the policy.18

For example, if school officials believed that

students of a particular race were likely to wear a particular style of clothing, and then, as a

means of penalizing students of that race (as opposed to as a means of advancing a legitimate

school objective), adopted a policy that made wearing that style of clothing a violation of the

dress code, the policy would constitute unlawful intentional discrimination.

Lastly, intentional discrimination could be proven even without the existence of a similarly

situated student if the Departments found that teachers or administrators were acting based on

racially discriminatory motives. For example, if a school official uttered a racial slur when

disciplining a student, this could suggest racial animus, supporting a finding that the official

e e s m e b se l s e ’s e.

Whether the Departments find that a school has engaged in intentional discrimination will be

based on the facts and circumstances surrounding the particular discipline incident. Evidence of

racially discriminatory intent can be either direct or circumstantial. Direct evidence might

include remarks, testimony, or admissions by school officials revealing racially discriminatory

motives. Circumstantial evidence is evidence that allows the Departments to infer

discriminatory intent from the facts of the investigation as a whole, or from the totality of the

circumstances.

Absent direct evidence of intentional discrimination based on race, the Departments examine the

circumstantial evidence to evaluate whether discrimination has occurred. The Departments

typically ask the following questions to determine whether a school intentionally discriminated

in the administration of student discipline (see also Illustration 1, page 10):

(1) Did the school limit or deny educational services, benefits, or opportunities to a

student or group of students of a particular race by treating them differently from a

similarly situated student or group of students of another race in the disciplinary

process? (As noted above, students are similarly situated when they are comparable

(even if not identical) in relevant respects, for example, with regard to the seriousness

of the infraction committed and their respective disciplinary histories.) If no, then the

Departments would not find sufficient evidence to determine that the school has

18

See, e.g., Hunter v. Underwood, 471 U.S. 222, 227, 231-32 (1985).



engaged in intentional discrimination. If the students are similarly situated and the

school has treated them differently, then:

(2) Can the school articulate a legitimate, nondiscriminatory reason for the different

treatment? If not, the Departments could find that the school has intentionally

discriminated on the basis of race. If yes, then:

(3) Is the reason articulated a pretext for discrimination?19

Some of the circumstances

where the Departments may find that the s l’s s e reason is a pretext – in other

w s, e e e s f e s l’s – are: the asserted reason does not

ex l e s l’s s; w esses e s l’s s e e s f e

disparity, exposing such reason as false; students of other races have received

different sanctions for similar instances of misbehavior; or the sanctions imposed do

f m e s l’s e m e discipline sanctions in its written discipline

policy. If the nondiscriminatory reason offered by the school is found to be

pretextual, the Departments would find that the school had engaged in intentional

discrimination.

In evaluating claims under this analysis, the Departments may also consider other circumstantial

evidence to determine w e e e e w s s m e e l s l’s

administration of discipline. Such circumstantial evidence may include, but is not limited to,

whether the impact of a disciplinary policy or practice weighs more heavily on students of a

particular race; whether there is a history of discriminatory conduct toward members of a

s e ’s e; e m s e s be s l l e s n; and whether

there had been inconsistent application of disciplinary policies and practices to students of

different racial backgrounds.20

19

See generally Elston v. Talladega County Bd. of Educ., 997 F.2d 1394 (11th Cir. 1993); U.S. Department of

Justice, Title VI Legal Manual 44-46 (J . 11, 2001) (“T le VI M l”); U.S. De me f E , R l

Incidents and Harassment against Students at Educational Institutions, 59 Fed. Reg. 11,448 (Mar. 10, 1994). See

also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a Title VII case that sets forth a three-part test that

also applies in the Title VI and Title IV contexts. The McDonnell Douglas test applies in court and administrative

litigation to determine whether an institution has engaged in prohibited discrimination.

20 See, e.g., Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-68 (1977) (identifying a

non-exhaustive list of factors that may serve as indicia of discriminatory intent).



Did the school limit or deny educational services, benefits, or

opportunities to a student or group of students of a particular race

by treating them differently from a similarly situated student or

group of students of another race in the disciplinary process?

Students are similarly situated when they are comparable (even if

not identical) in relevant respects; for example, with regard to the

seriousness of the infraction committed and their respective

disciplinary histories.

If no, then the Departments

would not find sufficient

evidence to determine that the

school has engaged in

intentional discrimination.

If the students are similarly situated and

the school has treated them differently,

then can the school articulate a

legitimate, nondiscriminatory reason for

the different treatment?

If not, the Departments could find

that the school has intentionally

discriminated on the basis of race.

If yes, is the reason articulated a pretext for discrimination?

Some of the circumstances where the Departments may find

e s l’s s e e s s e ex – in other words, not

the true reason for the s l’s – are: the asserted

e s es ex l e s l’s s; w esses

e s l’s s e e s f e s ,

exposing such reason as false; similar instances of

misbehavior by students of other races have received different

sanctions; or the sanctions imposed do not conform to the

s l’s e m e s l e s s s w e s l e

policy.

If the reason is not a pretext for

discrimination, then the

Departments would likely find

that the school has not engaged

in discrimination.

If the nondiscriminatory reason

offered by the school is found to be

pretextual, the Departments would

find that the school had engaged in

intentional discrimination.

Illustration 1: Different Treatment Flowchart



2. Disparate Impact

Schools also violate Federal law when they evenhandedly implement facially neutral policies and

practices that, although not adopted with the intent to discriminate, nonetheless have an

unjustified effect of discriminating against students on the basis of race. The resulting

discriminatory effect is mm l efe e s “ s e m .”21

In determining whether a facially neutral policy has an unlawful disparate impact on the basis of

race, the Departments will engage in the following three-part inquiry (see also Illustration 2,

page 13).

(1) Has the discipline policy resulted in an adverse impact on students of a particular race

as compared with students of other races? For example, depending on the facts of a

particular case, an adverse impact may include, but is not limited to, instances where

students of a particular race, as compared to students of other races, are

disproportionately: sanctioned at higher rates; disciplined for specific offenses;

subjected to longer sanctions or more severe penalties; removed from the regular

school setting to an alternative school setting; or excluded from one or more

educational programs or activities. If there were no adverse impact, then, under this

inquiry, the Departments would not find sufficient evidence to determine that the

school had engaged in discrimination. If there were an adverse impact, then:

(2) Is the discipline policy necessary to meet an important educational goal?22

In

conducting the second step of this inquiry, the Departments will consider both the

importance of the goal that the school articulates and the tightness of the fit between

the stated goal and the means employed to achieve it. If the policy is not necessary to

meet an important educational goal, then the Departments would find that the school

had engaged in discrimination. If the policy is necessary to meet an important

educational goal, then the Departments would ask:

(3) Are there comparably effective alternative policies or practices that would meet the

s l’s stated educational goal with less of a burden or adverse impact on the

disproportionately affected racial group, s e s l’s ffe e j s f

pretext for discrimination?23

If the answer is yes to either question, then the

21

Recipients of Federal financial assistance are prohibited from “ l z[ ] e me s f m s

which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or

have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect

individuals of a particular race, l , l .” 34 C.F.R. § 100.3(b)(2); see also 28 C.F.R. §

42.104(b)(2).

22 See Elston, 997 F.2d at 1411-12 (ex l s e e e s ls em s e “e l

e ess ” f e lle e m, e, procedure); Title VI Manual at 51.

23 See Elston, 997 F.2d at 1413.



Departments would find that the school had engaged in discrimination. If no, then the

Departments would likely not find sufficient evidence to determine that the school

had engaged in discrimination.

Examples of policies that can raise disparate impact concerns include policies that impose

mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon

any student who commits a specified offense – such as being tardy to class, being in possession

of a cellular phone, being found insubordinate, acting out, or not wearing the proper school

uniform; corporal punishment policies that allow schools to paddle, spank, or otherwise

physically punish students; and discipline policies that prevent youth returning from involvement

in the justice system from reenrolling in school. Additionally, policies that impose out-of-school

suspensions or expulsions for truancy also raise concerns because a school would likely have

difficulty demonstrating that excluding a student from attending school in response to the

s e ’s eff s s l was necessary to meet an important educational goal.



Illustration 2: Disparate Impact Flowchart

Has the discipline policy resulted in an adverse impact on students of a particular race as compared

with students of other races? For example, under a particular policy are students of one race sanctioned

at disproportionately higher rates, or more likely to receive longer or more severe punishments?

If no, then the Departments would

not find sufficient evidence to

determine that the school had

engaged in discrimination.

If yes, is the discipline policy necessary

to meet an important educational goal?

In conducting the second step of this

inquiry, the Departments will consider

both the importance of the goal that the

school articulates and the tightness of

the fit between the stated goal and the

means employed to achieve it.

If the policy is not necessary to

meet an important educational

goal, then the Departments would

find that the school had engaged in

discrimination.

If the policy is necessary to meet an

important educational goal, then are there

comparably effective alternative policies or

practices that would meet the s l’s s e

educational goal with less of a burden or

adverse impact on the disproportionately

affected racial group?

If no, then the Departments would

likely not find sufficient evidence

to determine that the school had


If yes, then the Departments

would find that the school had




3. Examples

This Section provides practical examples of situations in which the Departments might find,

consistent with the principles set forth in the previous Sections, that violations of Title IV or

Title VI have been established. These examples are intended to be illustrative, not exhaustive.

We encourage school districts to contact us for technical assistance in applying this guidance to

their particular situations.

Example 1

A complaint was filed alleging discrimination after a school imposed different disciplinary

sanctions on two students in the sixth grade – a non-Hispanic student and a Hispanic student –

who engaged in a fight. Both students had similar disciplinary histories, having each previously

received after-school detention for minor infractions. The Hispanic student received a three-day

out-of-school suspension f e s e ’s l eme e f , while the non-Hispanic

student received a two-day out-of-school suspension for the same misconduct, raising a concern

that the students were treated differently on the basis of race.

Based on these facts and circumstances, the Departments would make an initial determination

that the students were similarly situated, as they were involved in the same incident and have

similar discipline records. If the school provided evidence of facts and circumstances

surrounding the incident that would constitute a legitimate, nondiscriminatory reason for the

different treatment, such as evidence that it disciplined the Hispanic student more severely

because the student instigated the fight and directly threatened school officials who tried to break

up the fight, then these facts and circumstances might constitute a nondiscriminatory reason for

the different treatment.24

If a nondiscriminatory reason for imposing a different sanction on

either student were not identified, the Departments could find that the school had violated Titles

IV and VI.

If a legitimate, nondiscriminatory reason for the different sanction were identified, the

Departments would probe further to determine whether the reason given for the enhanced

sanction was a pretext for racial discrimination. In making this determination, the Departments

would request and consider information such as witness statements, codes of conduct, and

student disciplinary records. The Departments would then evaluate, among other things, whether

the school conformed to its written policies; whether the Hispanic student did, in fact, instigate

the fight; and whether the school had previously imposed a higher sanction on non-Hispanic

students who had instigated fights.

If the Departments found a violation, among the individual remedies that might be required

w l be e e s f e H s s e ’s s l e s ele e e e f l 24

For more information regarding evidence the Departments consider when conducting an investigation, please

consult Section B.



punishment and the provision of compensatory educational services to remedy missed class

time.25

The Departments could also require systemic relief, such as training of decision makers

and changing disciplinary procedures to prevent different treatment in the future.

Example 2

A s ’s code of conduct specifies three different categories of offenses, ranging from Level

1, or minor behavior offenses, to Level 3, which covers the most serious conduct.26

The code of

conduct gives school officials the discretion to select among a range of penalties identified for

each category of offense. A complainant alleges that her eighth-grade son, who is African-

American, was referred to the office at his school and received a one-day in-school suspension

f “ se f f e l l e” – a Level 1 offense – during a class period. The

disciplinary sanction imposed was within the permissible range for Level 1 offenses. The student

has had no previous discipline incidents. A white student at the same school and with a similar

s l s ls mm e Le el 1 ffe se: “ e s l f ffe ” while

on the school bus. While the parent of the white student was called, the student received no

additional disciplinary sanction.

The fact that the school characterized both types of misconduct as Level 1 offenses indicates that

the school itself believes that the misconduct warrants similar disciplinary responses. Based on

these facts and circumstances, the Departments would make an initial determination that these

students were similarly situated because they engaged in comparable conduct as defined by the

school – misconduct classified as a Level 1 offense – and had similar disciplinary records.

The school would be asked whether it had a reason (such as the context or circumstances for

these incidents) that would justify treating the students differently for Level 1 offenses. In this

case, the school gave teachers and administrators a list of factors to consider when deciding

whether to enhance or reduce disciplinary sanctions. Some of the factors relevant to Level 1

offenses were: w e e e s e ’s m s nterrupted the learning process; whether the

student had been previously disciplined for the same offense; whether the student accepted

responsibility for the misconduct; and whether the student could demonstrate that he or she tried

to avoid the situation that resulted in the misconduct. The school provided evidence that the

parent of the African-American student previously received a telephone call about her son’s prior

use of profane or vulgar language in the classroom. The school also determined that the different

25

For more information on remedies for violations of Titles IV or VI, please consult Section D.

26 A district can create categories of offenses and penalties as part of its discipline policy or student code of conduct,

as long as the categories themselves do not reflect racial biases or stereotypes and/or are not based on race.

Misconduct that is categorized in a manner that does not align with the severity of the offense (e.g., school-based

arrest for a school uniform violation) may raise an inference of racial discrimination if students of a particular race

are disproportionately disciplined for that offense.



locations of the offenses, e.g., on the bus as compared to in the classroom, resulted in different

levels of disruption to learning.

The s l’s reasons for treating the students differently would be sufficient under these facts

and circumstances, unless the Departments found that the proffered reasons were a pretext for

discrimination. In this instance, if school officials gave conflicting accounts of why the African-

American s e e e e e s , f e s l’s e s s we el

distinguished misbehavior on the bus from misbehavior in the classroom in determining

sanctions, the Departments could determine that the alleged nondiscriminatory explanation was

pretextual.

If the school had not provided a nondiscriminatory reason for imposing a different sanction on

the African-American student, or if the purported nondiscriminatory reason were found to be

pretextual, the Departments would find that the school had violated Titles IV and VI. In that

case, the Departments would seek individual and/or systemic relief.

Example 3

A complainant alleges that Native-American students are treated differently from their non-

Native-American peers at a school that contracts with a school safety officer to secure the

entrances and exits of the school building, patrol the halls, and maintain safety on the school

grounds. The investigation reveals that the school safety officer, when he was posted for

security at the main entrance, treated Native-American students differently from other students.

T e s l’s les e e w e s e arrives at the entrance less than five minutes late,

the student should be allowed to go directly to class, whereas when a student arrives more than

five minutes late, the student should be sent to the office before going to class. The school safety

officer, however, had a practice of detaining for several minutes some Native-American students

(but not any other students) who arrived less than five minutes late, and then sending them to the

office. The school safety officer, who was not an employee of the school, offered no

justification for the differential treatment and declined to speak with investigators or explain

himself to the school.

Because a school is responsible for discrimination by parties with whom it contracts or to whom

it otherwise delegates es s b l f s e s f e s l’s ms f s, the

conduct of the school safety officer would raise an inference of racial discrimination by the

school. If the school could not provide a nondiscriminatory reason for the different treatment of

Native American students by the school safety officer, or if the reason were found to be

pretextual, the Departments would find that the school had violated Titles IV and VI.



Example 4

A school district established a district-wide alternative high school to which it assigns students

w ex e s e s l e s. l l 12 e e f e s ’s s e s e

African-American, 90 percent of students assigned involuntarily to the alternative high school

are African-American. The evidence shows that when white and African-American students

commit similar offenses in their regular high schools, the offenses committed by the white

students have not been reflected as often in school records. The evidence also shows that some

white students are not assigned to the alternative high school, despite having disciplinary records

as extensive (in terms of number of and severity of offenses) as some of the African-American

students who have been involuntarily assigned there. Based on these facts and circumstances, if

the school district could not provide a legitimate, nondiscriminatory reason for the different

treatment or the reason provided were pretextual, the Departments would find that the school

district had violated Titles IV and VI.

Example 5

s l s ’s s l e e allows for a one-day suspension of all students who commit

e ffe se f “ e e m e .” Statistical data demonstrate that under this

provision of the code, a school in the district suspends African-American students

disproportionately relative to their enrollment at the school. During the investigation, the

Departments find that the discipline code provision lacks a clear definition of the prohibited

conduct, and that the school has suspended African-American students under the provision for a

broad range of actions, including congregating in groups in the hallways, talking too loudly, or

talking back when admonished by the teacher. Further, the evidence indicates that white

students engaging in comparable conduct are more likely to be charged with lower-level

l s f e s l e e, s s “ ll ss” “ l ss m s .” These

offenses do not lead to suspension and are more likely to result in after-school detention.

Based on this evidence, the Departments would probe further and ask the school whether it had a

nondiscriminatory reason for the pattern of different treatment, such as additional circumstances

or specific, objective factors that led decision makers to consider certain instances of

misbehavior more threatening than other instances of similar misbehavior. If a

nondiscriminatory reason were not identified (for instance, if the school provided only a

statement from a teacher that the teacher felt more threatened by the conduct of the African-

American students, without providing a reasonable basis to conclude that the behavior at issue

actually was more threatening), or if the purported nondiscriminatory reason were found to be

pretextual, the Departments would find the school in violation of Titles IV and VI, and seek

individual and/or systemic relief.

Such remedies could consist of one or more of the following: (1) providing clear definitions and

examples of threatening actions for which students may be suspended (including specifying the

conduct that does not warrant a suspension); (2) requiring the administrator(s) to make specific



findings prior to imposing the sanction of suspension, e.g., determining that the behavior in

question falls within the scope of the prohibited conduct, and/or determining that other means of

addressing student behavior are not feasible or repeatedly failed to bring about appropriate

conduct; (3) providing teachers and administrators with training on how to administer the policy

fairly and equitably; and/or (4) providing teachers with training in classroom management

techniques and effective behavioral interventions that give them appropriate and culturally

responsive tools to interpret and address the underlying behaviors.

Example 6

A school district adopted an elaborate set of rules governing the sanctions for various

disciplinary offenses. For one l ffe se, l bele “use of electronic devices,” e

maximum sanction is a one-day in-school suspension where the student is separated from his

regular classroom but still is provided some educational services. The investigation reveals that

school officials, however, regularly impose a greater, unauthorized punishment – out-of-school

suspension – for use of electronic devices. The investigation also shows that African-American

students are engaging in the use of electronic devices at a higher rate than students of other races.

C le w e s l’s e l m s f e e , ze s me f s

electronic devices, therefore, African-American students are receiving excessive punishments

more frequently than students of other races. In other words, African-American students are

substantially more likely than students of other races to receive a punishment in excess of that

ze e e s l’s w les.

There is no evidence that the disproportionate discipline results from racial bias or reflects racial

stereotypes. Rather, further investigation shows that this excessive punishment is the result of

poor training of school officials on the school rules that apply to use of electronic devices.

Under these circumstances, the Departments could find a violation of Title VI. Although there is

no finding of intentional discrimination, the misapplication of the discipline rules by school

officials results in an adverse impact (disproportionate exclusion from education services) on

African-American students as compared with other students. Because this practice has an

adverse racial impact, the school must demonstrate that the practice is necessary to meet an

important educational goal. The school cannot do so, however, because there is no justification

for school officials to disregard their own rules and impose a punishment not authorized by those

rules.

Additional training for school officials, clarification of the rules, and the immediate collection

and review of incident data to prevent unauthorized punishments might be required to eliminate

the disparate impact going forward. Among the individual remedies that might be required are

e s f s e s’ school records and compensatory educational services to remedy missed

class time.



Example 7

A middle school has a “zero tolerance” ess policy. Students who are more than five

minutes tardy to class are always referred to the l’s office at a particular school, where

they are required to remain for the rest of the class period regardless of their reason for being

tardy. The school also imposes an automatic one-day suspension when a student is recorded as

being tardy five times in the same semester. Additional tardiness results in longer suspensions

and a meeting with a truancy officer.

The evidence shows Asian-American students are disproportionately losing instruction time

e e s l’s “ze le e” ess l , s esult of both office referrals and

suspensions for repeated tardiness.

An investigation further reveals that white and Hispanic students are more likely to live within

walking distance of the school, while Asian-American students are more likely to live farther

away and in an area cut off by an interstate highway that prevents them from walking to school.

The majority of Asian-American students are thus required to take public transportation. These

students take the first public bus traveling in the direction of their school every morning. Even

though they arrive at the bus stop in time to take the first bus available in the morning, they often

are not dropped off at school until after school has begun.

As justification for the “zero tolerance” tardiness policy, the school articulates the goals of

reducing disruption caused by tardiness, encouraging good attendance, and promoting a climate

where school rules are respected, all of which the Departments accept as important educational

goals. The Departments would then assess the fit between the stated goals and the means

employed by the school – including whether the policy is reasonably likely to reduce tardiness

for these students under these circumstances. Assuming there was such a fit, the Departments

would then probe further to determine the availability of alternatives that would also achieve the

important educational goals while reducing the adverse effect on Asian-American students (e.g.,

aligning class schedules and bus schedules, or excusing students whose tardiness is the result of

bus delays). If e De me s e e m e s l’s l e l be me

alternative policies that eliminate or have less of an adverse racial impact, the Departments

would find the school in violation of Title VI and require that the school implement those

alternatives.

B. Information the Departments Consider

During an investigation, the Departments will examine facts and information related to a

s l’s s l e . The following is a non-exhaustive list of the types of information

the Departments have examined when investigating the possibility of discriminatory discipline:

written policies (such as student codes of conduct, parent handbooks, and teacher manuals) and

unwritten disciplinary practices (such as exercises of discretion by teachers and school

administrators); data indicating the number of referrals to administrators charged with



implementing student discipline and/or to law enforcement authorities; discipline incident

reports; copies of student discipline records and discipline referral forms; school discipline data

disaggregated by subgroup, offense, other relevant factors (such as the time of incident, place of

incident, whether more than one student w s l e e , e s e s’

disciplinary infractions, the person(s) who referred a student for discipline); and interviews with

students, parents, administrators, teachers, counselors, school resource officers and other law

enforcement officers, relevant contractors, and support staff. The Departments also will review

and analyze information provided by schools through the CRDC, if applicable, and other

relevant data.

The Departments will look carefully at, among other things, s l’s ef s f m s t

to ensure they are clear and nondiscriminatory, the extent to which disciplinary criteria and

referrals are made for offenses that are subjectively defined (e.g., disrespect or insubordination),

and whether there are safeguards to ensure that discretion is exercised in a nondiscriminatory

manner. In addition to establishing a system for monitoring all disciplinary referrals, the school

should have a system in place to ensure that staff who have the authority to refer students for

discipline are properly trained to administer student discipline in a nondiscriminatory manner.

Schools should thus take steps to monitor and evaluate the impact of disciplinary practices to

detect patterns that bear further investigation.

C. Importance of Appropriate Record Keeping

The Departments expect schools to cooperate with investigations and, upon request, to provide

records that will enable the Departments to ascertain whether the administration of student

discipline policies and practices complies with the requirements of Titles IV and VI. If the

Departments determine that a school does not collect accurate and complete data to resolve an

investigation, and/or the Departments are unable to obtain the necessary information through

interviews or other means, the Departments may conclude that the school’s e -keeping

process presents concerns.

To address these concerns, the Departments may require, for example, that the school begin

keeping the necessary information to determine if the school is meeting its Title VI obligations

and not discriminating against students in the administration of its discipline policies.27

A non-

27

See 34 C.F.R. § 100.6(b), l e De me f E (“E e e s ll ee s e s

submit to the responsible Department official or his designee timely, complete and accurate compliance reports at

such times, and in such form and containing such information, as the responsible Department official or his designee

m e e m e be e ess e ble m s e w e e e e e s m l e s m l ” w

the Title VI regulations.); id. § 100.6( ) (“E e e shall permit access by the responsible Department official

or his designee during normal business hours to such of its books, records, accounts, and other sources of

f m , s f l es s m be e e s e m l e” w e T le VI regulations). See also

28 C.F.R. § 42.106(b), l DOJ (“E e e s ll ee s e s s bm e es s ble

Department official or his designee timely, complete, and accurate compliance reports at such times, and in such



exhaustive list of data-related remedies required of schools found to be in noncompliance with

Title VI includes the following: developing and implementing uniform standards for the content

of discipline files; developing and training all staff on uniform standards for entry, maintenance,

e e l f el me e s l’s s l e ess s

implementation, including its racial impact; and keeping data on teacher referrals and discipline,

to assess whether particular teachers may be referring large numbers of students by race for

discipline (and following up with these teachers, as appropriate, to determine the underlying

causes).

D. Remedies

If the Departments conclude that a school is in violation of Title IV or Title VI in the

m s f s e s l e, e De me s w ll em se e e s l’s

voluntary agreement to take specific steps to remedy the identified violation before seeking

redress in court or through an administrative hearing. If appropriate under the circumstances, the

Departments will involve the entire district, and not just an individual school, in the agreement.

The remedy sought would be aligned with e De me s’ f s could include

individual relief to students who were subjected to racial discrimination, and also prospective

remedies that are necessary to ensure the school’s ( s ’s) future adherence to the

requirements of Titles IV and VI. Such remedies may include the following:

correcting the records of students who were treated differently regarding the infraction

and sanction imposed;

providing compensatory, comparable academic services to students receiving in-school or

out-of-school suspensions, expelled, placed in an alternative school, or otherwise

removed from academic instruction;

revising discipline policies to provide clear definitions of infractions to ensure that

consequences are fair and consistent;

developing and implementing strategies for teaching, including the use of appropriate

supports and interventions, which encourage and reinforce positive student behaviors and

utilize exclusionary discipline as a last resort;

form and containing such information, as the responsible Department official or his designee may determine to be

e ess e ble m s e w e e e e e s m l e s m l ” w e T le VI

regulations); id. § 106( ) (“e e ent shall permit access by the responsible Department official or his designee

during normal business hours to such of its books, records, accounts, and other sources of information, and its

f l es, s m be e e s e m l e” w e Title VI regulations); id. § 106(d). If a school has

been previously instructed by the Departments to collect and maintain particular data, the failure to provide such

data would be regarded as a violation of these provisions and would cause the Departments to presume the missing

data would have supported a finding of a substantive violation.



providing training for school personnel on revised discipline policies and classroom

management techniques;

providing school-based supports for struggling students whose behavior repeatedly

disrupts their education and/or the education of other students;28

designating a school official as a discipline supervisor to ensure that the school

implements its discipline policies fairly and equitably;

conducting and/or reviewing comprehensive needs assessments to ensure they are

effective in measuring the perceptions of students and other members of the community

in connection with the administration of school discipline, and using the results of these

assessments to make responsive changes to policies and practices;

at least annually, conducting a forum during the school day that provides students,

teachers and administrators the opportunity to discuss matters relating to discipline and

e e s l’s s l e l es;

developing a training and information program for students and community members that

ex l s e s l’s s l e l es w s ex e e f s e s e-

appropriate, easily understood manner;

creating a plan for improving teacher-student relationships and on-site mentoring

programs; and

conducting an annual comprehensive review of school resource officer interventions and

practices to assess their effectiveness in helping the school meet its goals and objectives

for student safety and discipline.

Remedies will necessarily vary with the facts of each case; in all instances, however, the

eme es m s f ll effe el ess e s l’s s m s e s e f e

compliance with Titles IV and VI.29

If the Departments enter into a resolution agreement with a

school, they will monitor e s l’s m l e w e eeme e s e e s l s

meeting the requirements of Titles IV and VI when administering student discipline.

28

As previously noted, for students with disabilities, other Federal requirements may apply.

29 The Departments have entered into settlement agreements and consent decrees to address and prevent racial

discrimination in student discipline. These documents provide additional examples of the kinds of remedies that the

Departments seek to ensure compliance with Titles IV and VI, and may be found at

http://www.justice.gov/crt/about/edu/documents/classlist.php and

http://www.ed.gov/ocr/docs/investigations/index.html.


http://www.justice.gov/crt/about/edu/documents/classlist.php


CONCLUSION

The Departments are committed to promoting effective and appropriate school discipline policies

and practices that create a safe and inclusive environment where all students can learn and

succeed. As part of this commitment, we will enforce Federal laws to eliminate unlawful racial

discrimination in school discipline. In addition to investigating complaints that have been filed,

both Departments are collaboratively and proactively initiating compliance reviews nationwide

focused on student discipline. Finally, the Departments will continue to provide technical

assistance to schools on the adoption and administration of discipline policies consistent with

their obligations under Federal civil rights laws.

Thank you for your efforts to ensure that the nat ’s s e s e e w e al

educational opportunities. If you need technical assistance, please contact the OCR regional

office serving your State or territory by visiting

http://www.ed.gov/about/offices/list/ocr/index.html ll OCR’s C s me Se e Te m

1-800-421-3481. Y m DOJ’s C l R s D s , E l O es

Section, at [email protected], or 1-877-292-3804.

We look forward to continuing our work together to ensure equal access to education and to

m e s fe s l e me s f ll f me ’s s e s.

Sincerely,

/S/

/S/

Catherine E. Lhamon

Assistant Secretary

Office for Civil Rights

U.S. Department of Education

Jocelyn Samuels

Acting Assistant Attorney General

Civil Rights Division

U.S. Department of Justice


http://www.ed.gov/about/offices/list/ocr/index.html


, Appendix – Dear Colleague Letter: Nondiscriminatory Administration of School Discipline

APPENDIX

Recommendations for School Districts, Administrators, Teachers, and Staff

The U.S. Department of Education and the U.S. Department of Justice (Departments) are

committed to working with schools, parents, students, stakeholder organizations, and other

interested parties to ensure that students are not subjected to racially discriminatory discipline

policies and practices. This appendix supplements the Dear Colleague Letter concerning

discrimination on the basis of race, color, or national origin in school discipline issued by the

Departments on January 8, 2014. We hope the following list of recommendations, which are

based on a review of a broad spectrum of our cases, will assist schools to identify, avoid, and

remedy discriminatory discipline based on race, color, or national origin.

These recommendations are intended to be illustrative. They are not intended to be exhaustive or

exclusive; do not address recommendations specifically targeted at preventing discriminatory

discipline that is based on prohibited grounds other than race, color, or national origin; and may

not be applicable to every specific factual setting in a particular school.1 Additionally, these

recommendations do not constitute legal advice, and schools that choose to implement one or

more of these recommendations might still be found to be in violation of Federal law(s). For

additional information, research, and resources in these three areas relating more generally to

improving school climate and discipline policies and practices, see the Guiding Principles

Resource Guide released by the U.S. Department of Education on January 8, 2014.

1 For specific resources designed to assist schools in developing and implementing effective prevention and

intervention strategies that promote positive student behavior and in planning and executing dropout prevention

strategies, readers may wish to consult the following practice guides published by the Department of Education:

Epstein, M., Atkins, M., Cullinan, D., Kutash, K., and Weaver, R. (2008). Reducing Behavior Problems in the

Elementary School Classroom: A Practice Guide (NCEE #2008-012). Washington, DC: National Center for

Education Evaluation and Regional Assistance, Institute of Education Sciences, U.S. Department of Education,

available at http://ies.ed.gov/ncee/wwc/publications/practiceguides; and Dynarski, M., Clarke, L., Cobb, B., Finn J.,

Rumberger, R., and Smink, J. (2008). Dropout Prevention: A Practice Guide (NCEE 2008-4025). Washington, DC:

National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences, U.S.

Department of Education, available at http://ies.ed.gov/ncee/wwc/publications/practiceguides. You may also wish

to consult with regional Equity Assistance Centers that can assist schools in developing and implementing policies

and practices to promote equitable educational opportunity on the basis of race, color, national origin, or sex. Please

visit http://www.ed.gov/programs/equitycenters for more information.


http://ies.ed.gov/ncee/wwc/publications/practiceguides

http://ies.ed.gov/ncee/wwc/publications/practiceguides

http://www.ed.gov/programs/equitycenters


I. Climate and Prevention

(A) Safe, inclusive, and positive school climates that provide students with supports

such as evidence-based tiered supports and social and emotional learning.

Develop and implement a comprehensive, school- and/or district-wide approach to classroom

management and student behavior grounded in evidence-based educational practices that

seeks to create a safe, inclusive, and positive educational environment.

Ensure that appropriate student behavior is positively reinforced. Such reinforcement could

include school-wide tiered supports, including universal, targeted, and intensive supports, to

l be l e e s s e s’ be l ee s.

Encourage students to accept responsibility for any misbehavior and acknowledge their

responsibility to follow school rules.

Assist students in developing social and emotional competencies (e.g., self-management,

resilience, self-awareness, responsible decision-making) that help them redirect their energy,

avoid conflict, and refocus on learning.

Refer students with complex social, emotional, or behavioral needs for psychological testing

and services, health services, or other educational services, where needed.

Ensure that there are sufficient school-based counselors, social workers, nurses,

psychologists, and other mental health and supportive service providers to work with

students and implement tiered supports. Involve these providers in addressing disciplinary

incidents; preventing future disciplinary concerns; reintegrating students who are returning

from suspensions, alternative disciplinary schools, or incarceration; and maintaining a safe,

inclusive, and positive educational environment.

Involve students and student advocates in maintaining a safe, inclusive, and positive

educational environment through programs such as peer mediation and restorative justice, as

appropriate.

(B) Training and professional development for all school personnel

Provide all school personnel, including teachers, administrators, support personnel, and

school resource officers, with ongoing, job-embedded professional development and training

in evidence-based techniques on classroom management, conflict resolution, and de-

escalation approaches that decrease classroom disruptions and utilize exclusionary

disciplinary sanctions as a last resort.



T ll s l e s el e s l’s w e s l e l w m s e discipline fairly and equitably. Facilitate dis ss f ll s l e s el f e s l’s

s l e l es e f l ’s l le e s fe, l s e, s e

educational environment.

Provide training to all school personnel on how to apply subjective criteria in making

disciplinary decisions.

Provide cultural awareness training to all school personnel, including training on working

with a racially and ethnically diverse student population and on the harms of employing or

failing to counter racial and ethnic stereotypes.

Establish procedures to assess the effectiveness of professional development approaches in

improving school discipline practice and staff knowledge and skills.

Establish procedures for school administrators to identify teachers who may be having

difficulty managing classrooms effectively, preventing discipline problems from occurring,

or making appropriate disciplinary referrals, and to provide those teachers with assistance

and training.

Ensure that appropriate instruction is provided to any volunteer o s l’s m s

e e s l’s l ss m m eme s e be .

(C) Appropriate use of law enforcement

Clearly define and formalize roles and areas of responsibility to govern student and school

interaction with school resource officers and other security or law enforcement personnel.

Document the roles and responsibilities of school resource officers and security or law

enforcement personnel in a written agreement or memorandum of understanding between the

school and appropriate law enforcement and/or related agencies.

Ensure that school resource officers and other security or law enforcement personnel

effectively support school climate and discipline goals by promoting a safe, inclusive, and

positive learning environment, and mentoring and otherwise supporting the education of

students.

Provide opportunities and approaches for school resource officers and other security or law

enforcement personnel, school personnel, students, and parents to develop a trusting and

positive relationship with one another.

Ensure that school personnel understand that they, rather than school resource officers and

other security or law enforcement personnel, are responsible for administering routine

student discipline.



Establish procedures and train school personnel and school volunteers on how to distinguish

between disciplinary infractions appropriately handled by school officials versus major

threats to school safety or serious school-based criminal conduct that cannot be safely and

el le b e s l’s e l s l nary procedures, and how to contact

law enforcement when warranted.

Regularly meet with school resource officers and other security or law enforcement

personnel who work in the school to ensure that they receive training to work effectively and

appropriately with elementary and secondary students. Such training may include instruction

in bias-free policing, including instruction on implicit bias and cultural competence; child

and adolescent development and age appropriate responses; practices demonstrated to

improve school climate; restorative justice techniques; mentoring; classroom presentation

skills; conflict resolution; privacy issues; and working collaboratively with school

administrators.

Ensure compliance with the Family Educational Rights and Privacy Act (FERPA) if school

resource officers or other security or law enforcement personnel are permitted access to

personally e f ble f m f m s e s’ e e s, s s s l

records.2

Collect data and monitor the actions that school resource officers and other security or law

enforcement personnel take against students to ensure nondiscrimination.

II. Clear, Appropriate, and Consistent Expectations and Consequences

(A) Nondiscriminatory, fair, and age-appropriate discipline policies

Ensure that school discipline policies specifically and positively state high expectations for

student behavior, promote respect for others, and make clear that engaging in harassment and

violence, among other problem behaviors, is unacceptable.

Ensure that discipline policies include a range of measures that students may take to improve

their behavior prior to disciplinary action.

Develop or revise written discipline policies to clearly define offense categories and base

disciplinary penalties on specific and objective criteria whenever possible. If certain offense

categories have progressive sanctions, clearly set forth the range of sanctions for each

infraction.

2 T ese e eme s e e 34 C.F.R. § 99.31( )(1) e e se f e s l’s l

notification of FERPA rights for how to identify school officials who have legitimate educational interests in

accessing such records.



E s e e s s l e b e s l’s s l e l es e e the

misconduct.

Review standards for disciplinary referrals and revise policies to include clear definitions of

offenses and procedures for all school personnel to follow when making referrals.

Clearly designate who has the authority to identify discipline violations and/or assign

penalties for misconduct.

E s e e s l’s w e s l e l e efe ls s l authorities or the imposition of sanctions distinguishes between those students who have

l e e s l’s s pline policy for the first time and those students who repeatedly

commit a particular violation of the discipline policy.

Ensure that appropriate due process procedures are in place and applied equally to all

students and include a clearly explained opport f e s e e l e s l’s

disciplinary action.

(B) Communicating with and engaging school communities

Involve families, students, and school personnel in the development and implementation of

discipline policies or codes of conduct and communicate those policies regularly and clearly.

Provide the discipline policies and student code of conduct to students in an easily

understandable, age-appropriate format that makes clear the sanctions imposed for specific

offenses, and periodically advise students of what conduct is expected of them.

Put protocols in place for when parents and guardians should be notified of incidents

meriting disciplinary sanctions to ensure that they are appropriately informed.3

Post all discipline-related materials on district and school websites.

Provide parents and guardians with copies of all discipline policies, including the discipline

code, student code of conduct, appeals process, process for re-enrollment, where appropriate,

and other related notices; and ensure that these written materials accurately reflect the key

3 To the extent that information about these incidents is included in education records, parents have the right under

FERPA and Individuals with Disabilities Education Act (IDEA) to inspect and review them. 20 U.S.C. §

1232g(1)(A); 34 C.F.R. § 99.10; 34 C.F.R. § 300.229; 34 C.F.R. § 300.613. If a student is 18 or over, or in the case

of an IDEA-eligible student, if a student has reached the age of majority as determined by State law, then the rights

accorded to parents under FERPA and the IDEA will transfer to the student. For students who hold their own

educational rights, consideration should be given to whether it is appropriate to notify the parents or the student, or

both, of the offense. See generally 20 U.S.C. § 1232g (d); 34 C.F.R. §§ 99.3, 99.5(a), 99.31; 20 U.S.C. § 1415(m);

34 C.F.R. § 300.520.



elements of the disciplinary approach, including appeals, alternative dispositions, time lines,

and provisions for informal hearings.

Translate all discipline policies, including the discipline code and all important documents

related to individual disciplinary actions, to ensure effective communication with students,

parents, and guardians who are limited English proficient. Provide interpreters or other

language assistance as needed by students and parents for all discipline-related meetings,

particularly for expulsion hearings.4

Establish a method for soliciting student, family, and community e e s l’s

disciplinary approach and process, which may include establishing a committee(s) on general

discipline policies made up of diverse participants, including, but not limited to students,

administrators, teachers, parents, and guardians; and seek input from parents, guardians, and

community leaders on discipline issues, including the written discipline policy and process.

(C) Emphasizing positive interventions over student removal

E s e e s l’s w e s l e l em s zes s e e e s e tactics or disciplinary sanctions that remove students from regular academic instruction (e.g.,

office referral, suspension, expulsion, alternative placement, seclusion).

E s e e s l’s w e s l e l ex l l l m s e se f -of-school

suspensions, expulsions, and alternative placements to the most severe disciplinary

infractions that threaten school safety or to those circumstances where mandated by Federal

or State law.

E s e e s l’s w e s l e l es f l l e e s e services and supports for students reentering the classroom following a disciplinary sanction.

E s e e s l’s w e s l e l es e f l e es -school and

out-of-school suspensions and other exclusionary practices (i.e., expulsions).

4 Such language assistance may be required by Title VI; schools have the responsibility to provide national origin-

minority parents who have limited proficiency in English with meaningful access to information provided to other

parents in a language they understand.



III. Equity and Continuous Improvement

(A) Monitoring and self-evaluation

De el l e e e l e l f e s l’s s l e l es practices and other school-wide behavior management approaches to determine if they are

affecting students of different racial and ethnic groups equally. Such a policy could include

requiring the regular review of discipline reports containing information necessary to assess

whether students with different personal characteristics (e.g., race, sex, disability, and

English learner status) are disproportionately disciplined, whether certain types of

disciplinary offenses are more commonly referred for disciplinary sanctions(s), whether

specific teachers or administrators are more likely to refer specific groups of students for

disciplinary sanctions, and any other indicators that may reveal disproportionate disciplinary

practices.

Establish a means for monitoring that penalties imposed are consistent with those specified in

e s l’s s l e e.

Conduct a periodic review of a sample of discipline referrals and outcomes to ensure

consistency in assignments.

(B) Data collection and responsive action

Collect and use multiple forms of data, including school climate surveys, incident data, and

other measures as needed, to track progress in creating and maintaining a safe, inclusive and

positive educational environment.5

Collect complete information surrounding all discipline incidents, including office referrals

and discipline incidents that do not result in sanctions. Relevant data elements include

information related to the date, time, and location of the discipline incident; the offense type;

whether an incident was reported to law enforcement; demographic and other information

related to the perpetrator, victim, witness, referrer, and disciplinarian; and the penalty

5 In administering a comprehensive needs assessment, school districts must comply with the Protection of Pupil

Rights Amendment (PPRA), which requires, among other things, that in the event that a survey administered or

s b e s e s w ll es s b e m e f e s e f e ems, s s e s e ’s me l

or psychological problems, the school district must: (1) develop and adopt policies to protect student privacy with

regard to the survey; (2) notify the parents, at least annually at the beginning of the school year, of the specific or

approximate dates that the survey will be scheduled; and, (3) offer an opportunity for parents to opt students out of

participation in the survey. See 20 U.S.C. § 1232h(c). The rights provided to parents under the PPRA transfer to the

student when the student turns 18 years old, or is an emancipated minor (under an applicable State law) at any

age. 20 U.S.C. § 1232h(c)(5)(B).



imposed. Ensure that there are administrative staff who understand how to analyze and

e e e s l’s s line data to confirm that data are accurately collected, reported,

and used.6

Create and review discipline reports to detect patterns that bear further investigation, assist in

z es es, e l e w e e s l’s s l e be management

goals are being reached.

If disparities in the administration of student discipline are identified, commit the school to a

l f e e m e w m f s e s l’s s l e w l

help it ameliorate the root cause(s) of these disparities.

Develop a discipline incident database that provides useful, valid, reliable, and timely

discipline incident data.7

Provide the school board and community stakeholders, consistent with applicable privacy

laws and after removing students’ identifiable information, with disaggregated discipline

information to ensure transparency and facilitate community discussion.

Make statistics publicly available on the main discipline indices disaggregated by school and

race.

Maintain data for a sufficient period of time to yield timely, accurate, and complete statistical

calculations.

I e Fe e l l s l ws, e s e e s l’s s l e l es practices comply with applicable Federal, State, and local laws, such as IDEA and FERPA.

6 Any use and disclosure of personally identifiable information on students from school discipline data must be

consistent with FERPA.

7 ss s e e el s b se s l ble f m e l F m E S s s’ e

e le , “F m G e C me, V le e, D s l e I e D ” (F m G e) (M 2011), available at

http://nces.ed.gov/forum/pub_2011806.asp.


http://nces.ed.gov/forum/pub_2011806.asp

VOLUNTARY RESOLUTION AGREEMENT

Tupelo Public School District

OCR Case No. 06-11-5002

The Tupelo Public School District (District) enters into the following voluntary resolution

agreement (Agreement) to resolve U.S. Department of Education, Office for Civil Rights (OCR)

Case No. 06-11-5002, and to ensure compliance with Title VI of the Civil Rights Act of 1964

(Title VI), 42 U.S.C. § 2000d et seq., and its implementing regulations at 34 C.F.R. Part 100.

The District enters into this Agreement for purposes of resolving a disputed claim that it violated

federal law. By entering into this Agreement, the District does not admit liability and this

Agreement is not to be construed as an admission of liability. Accordingly, consistent with its

obligation to comply with the requirements of Title VI, the District voluntarily commits to the

following:

General Principles

The goal of the District is to provide a safe, secure and orderly environment in all schools. The

fair and appropriate implementation of student discipline policies and procedures that are

grounded in evidence-based research is one means of advancing this objective. Therefore, the

District is committed to ensuring, to the maximum extent possible, that its student discipline

policies and procedures are designed and implemented in such a way that disciplinary sanctions

do not include the loss of educational instruction time for any students, except in those cases

where it is necessary to protect the immediate safety of students and staff or when it is the only

means of ensuring that student misbehavior does not substantially interfere with the delivery of

educational instruction to others. As described in more detail below, the District is committed to

working with students who exhibit behavior problems so that the students remain engaged in the

District’s educational program and are given every opportunity to reach their educational

potential and to providing teacher and staff training and support to further the goals and

requirements of this Agreement. The District is committed to implementing the terms of the

Agreement and shall report to the OCR on all included items through the 2016-2017 school year

(Term). Beyond that, the District shall remain committed to the general principles stated herein.

The District expects to fulfill the terms of the Agreement by the end of the 2016-2017 school

year.

Designation of Responsible Employee/Collaboration with Experts

1. (a) By September 30, 2014, the District will designate an employee(s), subject to OCR’s

review and approval, to serve as the District’s Discipline Supervisor(s), and will publish this

individual’s name and/or title, office address, e-mail address and telephone number on its

website, in all school publications regarding discipline, and in the notice that the District

sends to parents annually. The Discipline Supervisor(s) shall be responsible for overseeing

the implementation of the District’s policies concerning discipline in a fair and equitable

manner. In addition, the District’s Discipline Supervisor will address complaints from

parents, guardians, students and others regarding the implementation of the District’s

disciplinary policies.


(b) Throughout its implementation of this Agreement, the District will as necessary, consult

with and/or retain expert(s) in non-discriminatory discipline practices, as well as data

analysis and research-based strategies, to prevent discrimination against African American

students with respect to the use of school discipline. The expert(s) will provide the District

strategies for meeting the District’s goals of ensuring that discipline is appropriately and

equitably applied to all students regardless of race, and implementing this Agreement,

monitoring and evaluating practices, and ensuring stakeholder involvement. The District may

form a committee or hire a consultant or engage another assessor(s), subject to OCR’s review

and approval, as its expert(s) to conduct a review and assessment and make

recommendations. The District will provide any committee, consultant, or other assessor(s)

with all information identified by the assessor(s) as necessary to engage in the review and

assessment. The District will additionally ensure that the committee or consultant or other

assessor(s) have expertise in addressing the fair and equitable implementation of student

discipline policies and procedures.

(c) By October 15, 2014, the District will, in consultation with the Discipline Supervisor

and/or expert(s), examine the root cause(s) of the racial disparity in the discipline of students

in the District, and identify and, subject to the review and approval of OCR, take appropriate

corrective actions necessary to address the root causes(s) as part of the District’s strategies

for meeting its goals, as described in item 1.b.

(d) By October 15, 2014, the District will, in consultation with the Discipline Supervisor

and/or expert(s), examine its policies and procedures for referring students to the alternative

school, to ensure that the policies and procedures include: (1) clear entry criteria for

placement; (2) guidelines on length of placement; (3) guidelines for the provision of behavior

supports and services for students placed at the alternative school; (4) provisions for

transition back to the home school environment; and (5) approval by the Discipline

Supervisor for any placement at the alternative school. The goal of the alternative school

shall be to improve the student’s behavior so that the student can return his or her home

school in a timely fashion.

REPORTING REQUIREMENT: By September 30, 2014, the District will provide OCR the

name and qualifications of the individual(s) appointed as the Discipline Supervisor(s) and the

identity of any experts consulted and/or retained for OCR’s review and approval. By

September 30, 2014, the District will provide documentation to OCR regarding its

implementation of the notice requirements of item 1(a). By July 31, 2015 and by the same

date annually during the Term of this Agreement, the District will provide to OCR copies of

all complaints about discipline received by the administrator referenced in item 1(a), and

documentation regarding its implementation of 1(b), (c) and (d), including any input received

from experts and the proposed changes made by the District.

Early Identification of At-Risk Students and Early Intervention

2. By September 30, 2014, all District schools will require that school staff employ a range of

corrective measures before referring a student to disciplinary authorities and/or law


enforcement unless it can be documented that the safety of students and/or staff is threatened

or the behavior in question is such that the disruption to the educational environment can

only be remedied by such a referral. By September 30, 2014, and by the same date annually

thereafter the District will develop and implement during the school year a plan to effectively

tailor school-based services that are supportive of the needs of students in order to decrease

behavioral difficulties that manifest in school and to increase students’ ability to benefit from

the learning environment. The plan will describe the following:

a. the process for identifying students who are at risk for behavioral difficulties;

b. school-based interventions for students who are identified as at-risk for behavioral

difficulties;

c. skill-building for at-risk youth; and

d. support for school staff to meet the needs of the at-risk students.

REPORTING REQUIREMENT: By September 30, 2014, the District will provide OCR a

copy of the plan referenced in this item. By September 30, 2015, and by the same date

annually thereafter during the Term of this Agreement, the District will provide to OCR

documentation of the steps taken to implement the plan in the just-completed school year.

Outreach to Students, District Staff and Community Members

3. By October 31, 2014, the District will establish a student committee at Tupelo Middle School

and Tupelo High School to discuss matters concerning the equitable treatment of students in

the implementation of the District’s discipline policies, practices and procedures and to

identify steps the students believe the District could take to improve student behavior and

cause students to be more engaged in the educational program.

a. The District will take steps to ensure that the student committees are representative of

each school’s student population.

b. The District will also invite students who have been subjected to disciplinary

consequences and students who are struggling academically to participate on or provide

input to the committees.

c. The District will encourage the student committees to identify the aspects of the

District’s educational program they see as positive and likely to encourage positive

student behavior and the aspects of the District’s educational program they see as

negative and likely to result in student misbehavior. The student committees will also

be encouraged to identify actions students can take to help their classmates engage in

positive school behavior.

d. The student committees will have the same privileges as other District extracurricular

activities, including access to meeting space in District schools and public notice about

the committees, their meetings and their activities.


e. The District will appoint a District staff person to work with each committee to assist

them in operating efficiently and effectively and in organizing their reports to the

District. The function of this staff person will be to assist the committees in achieving

their objectives, not to attempt to influence or control the committees’ discussions.

f. The student committees will provide specific suggestions for improving the District’s

discipline policies, practices and procedures and establishing a safe school environment

that is conducive to learning via the submission of a written report by no later than

March 15 each school year.

g. The student committees will conduct an annual forum during regular school hours that

specifically provides the opportunity for students to discuss with faculty and

administrators any matters relating to discipline, including non-discrimination, and

provide their input for any improvements in the District’s discipline policies.

h. The District will carefully consider the suggestions submitted by the student

committees and develop a plan, subject to OCR’s review and approval, for

implementing the committees’ suggestions as appropriate by no later than May 1 of

each school year. The District will provide the committees with a copy of the plan.

REPORTING REQUIREMENT: By June 30, 2015, and by the same date during the Term of

this Agreement, the District will provide documentation to OCR that the student committees

required by this item have been established, including the high school year(s) of the members

of each student committee and the District employees (and the employee’s title and job

responsibilities) who have been designated to coordinate or oversee the activities of each

student committee and a summary of the initial activities undertaken by each student

committee, the written reports submitted by the student committees. The District will submit

the plans it has developed to OCR for review and approval Within 60 days of OCR’s

approval of the proposed plans, the District will provide documentation concerning the

District’s implementation.

4. By October 31, 2014, the District will establish a working group at Tupelo Middle School

and Tupelo High School consisting of school personnel, including teachers, administrators

and other school staff who are involved in making discipline referrals and imposing

disciplinary sanctions, parents of school students and community leaders.

a. The working group will develop and make recommendations to the District regarding

the effectiveness of the District’s discipline policies, practices, and procedures in

promoting a safe and orderly educational environment and ensuring that discipline is

appropriately and equitably applied to all students regardless of race.

b. The District will invite community members, including the parents or guardians of

African American and other minority students, to participate on the working groups.

c. The District will designate an employee to coordinate the group’s meetings and work.


d. The working group will be asked to provide District officials with input regarding

strategies for improving student behavior, addressing student misbehavior by means

other than disciplinary sanctions, and reducing any racial disparity in referrals for

discipline, the imposition of disciplinary sanctions and the exclusion of students from

the educational program.

e. The working group will also be asked to provide continuing input to District officials

regarding strategies to ensure that school staff members have access to or are aware of

available resources for assisting them in managing and de-escalating student behavior.

f. The working group will also be asked to provide specific suggestions for developing

training and informational programs, as described in items 10 and 11, that promote a

safe and orderly educational environment and the fair and equitable treatment of all

students when making disciplinary referrals and imposing disciplinary sanctions.

g. The group will consider if and how outreach efforts to families can be made to garner

support for the District’s discipline policies, practices and procedures and for the

District’s goal of addressing student misbehavior without excluding students from the

educational program.

h. The designated employee will prepare a written summary of the recommendations and

suggestions of the working group and submit a report to the District setting forth the

recommendations and suggestions by no later than June 30 of each school year.

i. The District will review the report submitted by the working groups and develop a plan

for implementing the groups’ recommendations and suggestions as appropriate by no

later than June 30 of each school year. The District will provide the working groups

with a copy of the plan.

REPORTING REQUIREMENT: By October 31, 2014, and by the same date annually during

the Term of this Agreement, the District will provide documentation to OCR that the

working groups required by this item have been established, including the identity of the

members of each working group and the District employees who have been designated to

coordinate or oversee the activities of each working group and a summary of the initial

activities undertaken by each working group. By June 30, 2015, and by the same date

annually during the Term of this Agreement, the District will provide documentation to OCR

of the written reports submitted by the working groups. The District will submit the plans

developed by the District in response to the reports to OCR for review and approval. Within

60 days of OCR’s approval of the proposed plans, the District will provide documentation

concerning the District’s implementation

5. By October 31, 2014, and by the same date annually thereafter during the Term, the District

will develop and provide informational programs for parents or guardians of students at all

District schools that will explain the disciplinary policies of the District in an easily

understood manner and what is expected of students under those policies and the District’s

efforts in achieving fair discipline of all students. The parent programs may be incorporated


into other planned parent meetings, conferences or parent outreach programs. The District

will offer the informational programs in such a manner as to provide the maximum possible

participation by parents or guardians. This may include offering the program at multiple

times in various locations and will include providing access to parents or guardians who are

unable to attend the program to the materials developed by the District in association with the

program. This will include offering the program and the program materials in languages

other than English as necessary for English language learners and their parents. The program

will:

a. provide parents the opportunity to raise concerns or suggestions regarding the

improvement of the District’s disciplinary policies, including any issues in connection

with fairness and non-discrimination;

b. include District officials involved in the administration of discipline (e.g.,

administrators, teachers, behavior interventionists, guidance counselors);

c. emphasize the District’s commitment to using the policies referenced in this Agreement

to ensure a safe and orderly educational environment and to ensure the fair and

equitable treatment of all students when making disciplinary referrals and imposing

disciplinary sanctions;

d. advise the parents or guardians of the right of students to appropriate due process in

connection with any disciplinary action taken or proposed by the District;

e. include but not be limited to detailed explanations of the discipline policy, the

definitions of offense categories, the specific manner in which progressive disciplinary

consequences will be employed, resources that are available to students to assist them

in developing self-management skills and the District’s commitment to (1) recognizing

and reinforcing positive student behavior, and (2) addressing misbehavior in a manner

that does not require removal from the educational program;

f. advise the parents or guardians whom they may contact if they have any concerns about

the manner in which the District’s discipline policies are being implemented or if they

need assistance in addressing student behavioral problems.

REPORTING REQUIREMENT: By November 30, 2014, and by the same date annually

during the Term of this Agreement, the District will provide documentation to OCR

demonstrating that the information programs required by this item have been conducted. By

June 30, 2015, the District will provide documentation to OCR of any recommendations,

suggestions or reports that were provided by parents or guardians at the programs, and

indicate the plans developed and steps taken by the District in response to the input at these

programs.

6. By June 30, 2015, and by the same date annually during the Term of this Agreement, the

District will continue to provide the School Board a detailed report regarding the discipline

imposed at each school site.


REPORTING REQUIREMENT: By June 30, 2015, and by the same date annually thereafter

during the Term of this Agreement, the District will provide the documentation to OCR

describing the means it plans to use to convey information. By June 30, 2015, and by the

same date annually thereafter during the Term of this Agreement, the District will provide

documentation to OCR that it has provided the information referenced pursuant to this item.

Policies, Practices and Procedures

7. By January 31, 2015, the District will review and revise its student discipline policies,

practices and procedures, taking into account any recommendations made by the student

committees and working groups referenced in items 3 and 4 of this Agreement, to ensure that

they include the following:

a. Standards for disciplinary referrals that eliminate redundancies and include clear

definitions, categories and clear procedures for staff to follow when making

referrals;

b. The elimination, to the maximum extent possible, of vague, subjective or

redundant offense categories including those that necessarily require a high

degree of subjectivity and individual discretion (e.g., defiance/disobedience, other

misbehavior, disruptive behavior). To the extent the District retains such

categories, the District will provide specific examples to ensure that staff

understand the circumstances under which such categories can be used to impose

disciplinary sanctions and the distinctions between such categories;

c. Definitions of misconduct that are clear and objective to the maximum extent

possible, including clearly defined criteria for all offense categories that allow

deviations only if they are justified and well documented;

d. The range of penalties that may be imposed for each infraction and penalties that

are proportionate to the type of misconduct;

e. The criteria for selection within the range of possible penalties when imposing

disciplinary sanctions;

f. An explanation of how the District will distinguish between first offenders and

repeat offenders when imposing disciplinary sanctions and a clear explanation of

how any progressive disciplinary policies, practices and procedures are

implemented;

g. A requirement that alternatives to dismissal, suspension or other sanctions that

require removal from the educational setting be considered in all cases except

those where the immediate safety of students or staff is threatened, where the

behavior in question is such that the disruption to the educational environment can


only be remedied by removal, or where the student’s removal is a result of the

District’s progressive discipline policy;

h. A requirement that school staff attempt a range of corrective measures before

referring a student to disciplinary authorities and/or law enforcement unless it can

be documented that the safety of students or staff is threatened or the behavior in

question is such that the disruption to the educational environment can only be

remedied by such a referral;

i. A clear description of the circumstances that must be present for school staff to

involve school resource and/or security officers in the discipline of District

students, including whether threatening or violent behavior must be involved,

along with examples, if applicable, of circumstances where behavior that is

neither threatening nor violent can nonetheless result in the involvement of school

resource officers;

j. Appropriate due process standards for all students disciplined under the District’s

student discipline policies, practices and procedures, including a description of the

key elements of the discipline process (appeals, alternative dispositions, timelines,

provisions for informal hearings, etc.);

k. A program that seeks to successfully reintegrate students within the school

community who have been suspended, expelled or excluded, or who return from

alternative school or periods of incarceration, including counseling, tutoring or

other additional educational services to permit the student to make up lost

classroom time.

l. Any new provisions relating to the referral of students to the District’s alternative

school in light of the examination conducted pursuant to item 1.d.

REPORTING REQUIREMENT: By January 31, 2015, the District will submit its student

discipline policies, practices and procedures to OCR for review and approval. OCR

acknowledges that the School Board retains the sole authority to adopt policies and

procedures for the District. Within 30 days of OCR’s approval, the District will provide

documentation that it has disseminated the student discipline policies, practices and

procedures to all District students, parents and staff and/or posted them in a prominent

location on the District’s website and in each District school. Within 45 days of OCR’s

approval, the District will also provide documentation to OCR that it has translated the

revised student discipline policies, practices and procedures as necessary to accommodate

English language learners and their parents.

Student-Focused Remedies

8. Effective no later than October 31, 2014, the District will ensure that it has in place at each

District school a system of supports to assist students who display behavior problems. These

supports may include, but need not be limited to, the following:


a. Adult in-school mentoring;

b. Peer in-school mentoring;

c. Access to guidance counselors, social workers or student advocates as appropriate;

d. Involvement of parents in the discipline process;

e. Assistance with developing self-management skills;

f. Referral for psychological testing or other educational services, where indicated.

REPORTING REQUIREMENT: By January 31, 2015, and by the same date annually during

the Term of this Agreement, the District will provide documentation to OCR demonstrating

its full implementation of this item.

Staff and Student Training

9. By November 1, 2014, and by the same date annually thereafter, the District will provide

training programs to all District teachers, administrators, school aides, and any other District

personnel charged with supervising students, making disciplinary referrals or imposing

disciplinary sanctions. The training will incorporate input provided by the working group, as

required by item 4 above.

a. The training will emphasize the District’s commitment to using its discipline policies,

practices and procedures to provide a safe and orderly educational environment and to

facilitate the fair and equitable treatment of all students when making disciplinary

referrals and imposing disciplinary sanctions.

b. As appropriate, the training for District employees may include but not be limited to

detailed explanations of the discipline policy, the definitions of offense categories, the

specific manner in which progressive disciplinary consequences will be employed, if

applicable, the circumstances under which deviations from established policies and

procedures may be justified, the documentation that must be developed and maintained

by all District staff who make disciplinary referrals or impose disciplinary sanctions,

evidence-based techniques on classroom management and de-escalation approaches,

information on how to administer discipline fairly and equitably, resources that are

available to staff who are having difficulty with classroom discipline, resources that are

available to students to assist them in developing self-management skills, the value of

recognizing and reinforcing positive student behavior, and the importance of ensuring

to the maximum extent possible that misbehavior is addressed in a manner that does not

require removal from the educational program.

c. The training will emphasize the District’s requirement that staff employ a range of

corrective measures before referring a student to disciplinary authorities and/or law

enforcement unless it can be documented that the safety of students and/or staff is

threatened or the behavior in question is such that the disruption to the educational

environment can only be remedied by such a referral.


d. The training will provide employees the opportunity to raise concerns or suggestions

regarding the improvement of the District’s disciplinary policies, including any issues

in connection with fairness and non-discrimination on the basis of race.


during the Term of this Agreement, the District will provide documentation to OCR that it

has provided the training required by this item.

10. By November 30, 2014, and by the same date annually thereafter, the District will provide

training programs to all District students in an age appropriate, easily understood manner.

This training may be provided in conjunction with the student forums referenced in this

agreement. The training will incorporate the input provided by the working group, as

required by item 4 above.

a. The training will emphasize the District’s commitment to using its discipline policies,

practices and procedures to ensure a safe and orderly educational environment and to

ensure the fair and equitable treatment of all students when making disciplinary

referrals and imposing disciplinary sanctions. The training will advise students of their

right to appropriate due process procedures in connection with any disciplinary action

taken or proposed by the District.

b. The training will include but not be limited to detailed explanations of the discipline

policy, the definitions of offense categories, the specific manner in which progressive

disciplinary consequences will be employed, resources that are available to students to

assist them in developing self-management skills and the District’s commitment to (1)

recognizing and reinforcing positive student behavior, and (2) addressing misbehavior

in a manner that does not require removal from the educational program;


during the Term of this Agreement, the District will provide documentation to OCR that it

has provided the training required by this item.

Law Enforcement

11. By January 31, 2015, and by the same date annually thereafter, the District will complete a

comprehensive review of its use of law enforcement officials, including School Resource

Officers (SROs) and School Safety Officers (SSOs), to assess the effectiveness of the use of

these officials and identify any changes that should be made to the use of these officials to

ensure the use aligns with and aids the District in accomplishing the goals and objectives set

forth in this Agreement. The review may include, but not be limited to, the following:

a. Individual meetings with every SRO and SSO to assess the extent to which they have a

clear understanding of the District’s obligations under Title VI and the role they are

expected to play in the District and the extent to which the understanding expressed by

the SROs and SSOs aligns with the District’s expectations. The meetings should also


attempt to identify any problems the SRO and SSOs believe exist with how they are

being utilized by the District and suggestions they have for improving the program;

b. Meetings, as appropriate, with the student committees identified in item 3 of this

Agreement, the working groups identified in item 4 of this Agreement, school

administrators and pupil personnel teams to assess the extent to which the SRO and

SSOs in District schools are trusted by students, and parents, and utilized as part of the

overall effort to promote school discipline and establish a positive school climate,

rather than police officers merely available to arrest students;

c. A review of instances during the 2014-15 and subsequent school years in which an

SRO or SSO became involved in a student discipline matter to determine whether it

was appropriate for the SRO or SSO to become involved in the matter and whether,

once involved, the SRO or SSO acted in a manner that was consistent with the

District’s expectations and its discipline polices, practices and procedures. If

appropriate, the review may be done by random sampling. This review will also

examine instances where a District student was referred to law enforcement and

carefully consider whether the referral to law enforcement was appropriate under the

circumstances present at the time and consistent with the treatment of other similarly

situated students. If the District determines the referral was inappropriate, it will

promptly take steps to remedy any adverse effects, including efforts to expunge records

and discontinue law enforcement involvement.

REPORTING REQUIREMENT: By February 28, 2015, the District will provide

documentation to OCR of its compliance with parts a. and b. of this item. By November 30,

2015, the District will provide documentation to OCR of its review conducted pursuant to

part c. of this item of the Agreement and provide a description of any revisions the District

plans to make to its SRO and SSO program based on the review. The District’s report will

also include documentation associated with the review of instances during the previous

school year in which an SRO or SSO became involved in a student discipline matter, the

determination made by the District with respect to each incident as to whether the SRO or

SSO involvement was appropriate and a description with supporting documentation of any

actions taken by the District in those cases in which it determines the involvement of the

SRO or SSO was not appropriate. The District’s report will also identify any instances in

which it was determined that a referral to law enforcement was made inappropriately and

provide a detailed description with supporting documentation of the steps taken by the

District to remedy any adverse effects resulting from the referral.

12. By January 31, 2015, and by the same date annually thereafter, the District will provide

training to all District SROs and SSOs that explains the District’s obligations under Title VI,

the revisions being made to the SRO and SSO program and what is expected of the SROs

and SSOs under the SRO and SSO program and the District’s revised student discipline

policies, practices and procedures. The District will also make good faith efforts to

collaborate with the local police department with which it contracts for SROs to develop an

orientation program to be delivered to all SROs and SSOs newly assigned to the District that


explains the SRO and SSO program, what is expected of SROs and SSOs in the SRO and

SSO program and the District’s student discipline policies, practices and procedures.

a. The training and orientation will emphasize the SRO and SSO role in ensuring a safe

and orderly educational environment and the fair and equitable treatment of all District

students when taking disciplinary action.

b. The training and orientation will also provide the SROs and SSOs with information on

how to work effectively with the District’s elementary and secondary students and

identify resources available to the SROs and SSOs to assist them in this regard.

c. The training and orientation will also include but not be limited to detailed explanations

of the District’s discipline policy, the definitions of offense categories, the specific

manner in which progressive disciplinary consequences will be employed, if applicable,

the circumstances under which deviations from established policies and procedures

may be justified, resources that are available to students to assist them in developing

self-management skills, the District’s commitment to recognizing and reinforcing

positive student behavior and to ensuring to the maximum extent possible that

misbehavior is addressed in a manner that does not require exclusion from the

educational program and the District’s obligations to ensure that the SRO and SSO

program is administered in a non-discriminatory manner.

REPORTING REQUIREMENT: By February 28, 2015, and by the same date annually

thereafter, the District will provide documentation to OCR of the training provided by the

District in accordance with this item, the name(s) of the person(s) who delivered the training,

and a description with supporting documentation of the person’s qualifications.

13. By March 30, 2015, and by the same date annually thereafter, the District will implement any

changes made to its SRO and SSO program pursuant to the review referenced under item 11

of this Agreement.

REPORTING REQUIREMENTS: By September 30, 2015, the District will provide

documentation to OCR that it has implemented this item of the Agreement.

Data Collection and Self-Monitoring

14. Beginning with the 2014-15 school year, the District will collect data, by school, regarding

referrals for student discipline, the imposition of disciplinary sanctions, referrals to law

enforcement and expulsion at all District schools. The data collected will include, but not be

limited to, the following:

a. The student’s name, identification number, race, sex, and grade;

b. The student’s disability and ELL status, if applicable;

c. The date of the referral, if any;

d. The specific offense(s) for which the referral was made;

e. The referring staff member (by staff identification/employee number);


f. The type of class from which the referral was made or other specific settings (e.g., bus

referral, hallway referral);

g. The specific offense for which the student was punished and the penalty/sanction

imposed or, if no offense was charged or penalty/sanction imposed, the reason why;

h. The manifestation hearing determination, if applicable;

i. The date the penalty/sanction was imposed;

j. The length of the penalty/sanction (in number of days);

k. The staff member who assigned the penalty/sanction (by staff identification/employee

number);

l. Whether school-based or local law enforcement were involved (e.g., law enforcement

was notified of the offense);

m. Whether the referral to law enforcement was mandatory and, if so, the statute or

ordinance governing the referral;

n. Whether the student was arrested as a result of school-based or law enforcement

involvement;

o. Any other non-punitive outcomes arising out of each referral incident, including, but

not limited to, referral for homebound services, disability evaluation; and

p. Whether the student was given access to appropriate due process procedures in

connection with the penalty/sanction.

REPORTING REQUIREMENT: By June 30, 2015 and by the same date annually thereafter

during the Term of this Agreement, the District will provide to OCR the data referenced in

this item for the just completed school year.

15. Effective with the 2014-15 school year, the District will evaluate on an ongoing basis but at

least at the end of each semester the data referenced in item 14 of the Agreement to assess

whether the District is implementing its student discipline policies, practices and procedures

in a non-discriminatory manner. The evaluation of the data will include, but not be limited

to, the following:

a. Review of discipline referrals and penalties imposed to examine whether African

American students are receiving more referrals or discipline than students of other

races;

b. Review of referrals to the District’s alternative school to examine whether African

American students are receiving more referrals than students of other races;

c. Review of referrals to law enforcement to examine whether African American students

are receiving more referrals than students of other races;

d. Review of student expulsions to examine whether African American students are

receiving more expulsions than students of other races;

e. Examination of whether certain teachers and administrators refer disproportionately

high numbers of students of a particular race for discipline or are disproportionately


responsible for imposing disciplinary sanctions that include exclusion from the

educational program;

f. Examination of whether certain SSOs refer disproportionately high numbers of students

of a particular race to law enforcement or are disproportionately responsible for making

referrals to law enforcement;

g. Examination of whether African American students are disproportionately referred for

offenses in which subjective judgment is exercised, while students of other races are

not;

h. Examination of whether all students are consistently referred for similar misbehaviors

without regard to race;

i. Examination of whether waivers of punishment, if available, are available to all

students without regard to race;

j. Examination of whether penalties imposed are consistent with the penalties specified in

the District’s discipline policies and procedures and, where exceptions are made,

whether they are justified.

REPORTING REQUIREMENT: By January 31, 2015, and by June 30, 2015, and by the

same dates annually during the Term of this Agreement, the District will provide to OCR the

evaluations referenced in this item for the just completed semester. The District will submit

any recommendations or changes to the District’s discipline policies and procedures

proposed as a result of this evaluation to OCR for review. The District may proceed with the

recommendations or changes if OCR has not raised any objections by the 30th calendar day

after submission of the recommendations or changes to OCR.

16. Effective no later than September 30, 2014, the District will establish uniform standards for

the content of student discipline files at all District schools. The standards will be designed

to ensure that the District keeps accurate and complete records of all discipline incidents,

including those that do not result in sanctions. To this end, the District will develop a

uniform District referral form to be used by all District staff when making disciplinary

referrals and a uniform District disciplinary sanctions form to be used by all District staff

when imposing disciplinary sanctions. At a minimum, the forms will require the person

completing the form to identify the date the referral was made or the sanction was imposed,

the name(s) of the student(s) being referred or disciplined, the specific offense(s) for which

the referral was made or the sanction was imposed, the name or staff identification/employee

number of the person making the referral or imposing the sanction; and the type of class or

other specific setting (e.g., bus, cafeteria, hallway) from which the referral was made. These

forms will require staff to provide sufficiently detailed information to explain the

circumstances that led to the disciplinary referral, the factual basis for the sanction imposed

and the justification for the selection of the particular penalty imposed from within the range

of possible penalties that could have been imposed, or, if no sanction was imposed, the


reason for that decision. The District may use an electronic database for collecting and

maintaining this information.

REPORTING REQUIREMENT: By October 31, 2014, the District will provide

documentation to OCR with the forms developed pursuant to this item of the Agreement.

17. Effective with the 2014-15 school year, and annually thereafter, the Superintendent or

Superintendent’s designee(s) will meet at the conclusion of each school year with the

principal of each District school to discuss the data gathered by the District under item 14 of

this Agreement. The meetings will examine how discipline referrals and disciplinary

sanctions imposed at each school compare to those at other District schools and consider any

data suggesting that African American students are disproportionately referred for discipline

or sanctioned more harshly than similarly-situated students of other races. If the data

suggests such disproportion, the meetings will explore possible causes for the disproportion

and consider steps that can be taken to eliminate the disproportion to the maximum extent

possible. If applicable, the principals will be reminded of District resources that are available

to assist them in addressing the disproportion. If the information suggests that the principal

or other school staff are failing to adhere to the District’s student discipline policies, practices

and procedures or are engaging in discrimination, the Superintendent or Superintendent’s

designee(s) will take appropriate corrective action, including but not limited to, additional

training or disciplinary action. Where the data shows no disproportion, the meetings will

examine steps that are being taken at the school to ensure the fair and equitable enforcement

of the District’s student discipline policies, practices and procedures that might be adopted as

“best practices” at those schools where disproportion exists.


during the Term of this Agreement, the District will provide documentation to OCR of the

meetings held pursuant to this item and of all steps taken as a consequence of information

shared at the meetings.

18. Effective with the 2014-15 school year, each school principal will meet at the conclusion of

each semester with the teachers at his/her school to discuss the data gathered by the District

under item 15 of this Agreement.

a. The meetings will examine how discipline referrals and disciplinary sanctions imposed

at the school compare to those at other District schools and consider any data

suggesting that African American students are disproportionately referred for discipline

or sanctioned more harshly than similarly-situated students of other races.

b. If the data suggests such disproportion, the meeting will explore possible causes for the

disproportion and consider steps that can be taken to eliminate the disproportion to the

maximum extent possible.

c. If applicable, the teachers will be reminded of District resources that are available to

assist them in addressing the disproportion.


d. Where the data shows that a particular teacher is responsible for a disproportionate

number of referrals or disproportionately refers African American students, the

principal will meet privately with that teacher to discuss the data, explore the reasons

for the disproportion, and examine potential solutions. If the information suggests that

the teacher is failing to adhere to the District’s student discipline policies, practices and

procedures or is engaging in discrimination, the principal will take appropriate

corrective action, including but not limited to, additional training or disciplinary action.

e. Where the data shows no disproportion or suggests that a teacher has been particularly

successful in managing student discipline at the classroom level, the meetings will

examine steps that are being taken at the school or by the individual teacher to ensure

the fair and equitable enforcement of the District’s student discipline policies, practices

and procedures that might be shared as “best practices” with other teachers at the

school and with other schools where disproportion exists.


during the Term of this Agreement, the District will provide documentation to OCR of the

meetings held pursuant to this item and a list of all steps it plans to take as a consequence of

information shared at the meetings.

19. Effective no later than January 31, 2015, the District will establish a discipline review team

for the purpose of randomly reviewing a percentage of the disciplinary actions taken at each

District school on an ongoing basis to ensure that the actions taken were non-discriminatory

and consistent with the District’s student discipline policies, practices and procedures. The

review may be done by random sampling. At the conclusion of each school year, the

discipline review team will prepare a report that summarizes the results of its review at each

school and includes recommendations on any changes to the District’s student discipline

policies, practices and procedures that should be made in light of the team’s findings. If at

any point during this process the discipline review team identifies any disciplinary action that

was discriminatory or inconsistent with the District’s student discipline policies, practices

and procedures, it will immediately report its finding to the Superintendent, who will take

immediate corrective action. Under such a circumstance, the discipline review team will also

expand its review at the school in question to include every disciplinary action taken at the

school during the school year. The District will submit any recommendations or changes to

the District’s discipline policies and procedures to OCR for review. The District may

proceed with the recommendations or changes if OCR has not raised any objections by the

30th calendar day after submission of the recommendations or changes to OCR.

REPORTING REQUIREMENT: By January 31, 2015, the District will provide

documentation to OCR that the teams have been established. By June 30, 2015, and by the

same date annually during the Term of this Agreement, the District will provide

documentation to OCR of the review conducted by the team during the just completed school

year.

20. At the conclusion of the 2014-15 school year and each school year thereafter, the District will

consider whether changes to its student discipline policies, practices and procedures are


warranted based on its evaluation of the District-wide student discipline data, the meetings

with administrators and staff, and the findings made by the discipline review team.

REPORTING REQUIREMENT: By June 30, 2015, and by the same date annually

thereafter during the term, the District will submit any recommendations or changes to the

District’s discipline policies and procedures proposed as a result of this section to OCR for

review. The District may proceed with the recommendations or changes if OCR has not

raised any objections by the 30th calendar day after submission of the recommendations or

changes to OCR.

The District understands that by signing this Agreement, it agrees to provide data and other

information in a timely manner. Further, the District understands that, during the monitoring of

this Agreement, OCR may visit the District, interview staff and students, and request such

additional reports or data as are necessary for OCR to determine whether the District has fulfilled

the terms of this Agreement and is in compliance with the regulation implementing Title VI, at

34 C.F.R. §§100.3(a) and (b)(i)-(iii), which were at issue in this compliance review.

The District understands that OCR will not close the monitoring of this Agreement until OCR

determines that the District has fulfilled the terms of this Agreement and is in compliance with

the regulation implementing Title VI, at §§100.3(a) and (b)(i)-(iii), which were at issue in this

case. Prior to the conclusion of OCR’s monitoring, the District will provide documentation

establishing that any remaining disparities in disciplinary referrals and/or sanctions, including

referrals to the District’s alternative school and to law enforcement are not the result of

discrimination prohibited by Title VI and its implementing regulations.

The District understands and acknowledges that OCR may initiate administrative enforcement or

judicial proceedings to enforce the specific terms and obligations of this Agreement. Before

initiating administrative enforcement (34 C.F.R. §§ 100.9, 100.10), or judicial proceedings to

enforce this Agreement, OCR shall give the District written notice of the alleged breach and a

minimum of sixty (60) calendar days to cure the alleged breach.

Approved and agreed to on behalf of the Tupelo Public School District, Tupelo, Mississippi.

____________________________________ ________________________

Gearl Loden, Ph.D., Superintendent Date


District: Proposed Sample Policy Section: J Students Policy Code: JCCA Due Process Disciplinary Due Process Hearing A student who has been suspended or expelled or otherwise denied admission to school has a right to due process. While a student is exercising his/her right to due process, the school district must continue to provide a public education until such time the student has exhausted all avenues of appeal and review. This policy must be contained in every school district’s hand book in its entirety. Step I: Informal Due Process: a) Prior to a decision to administer exclusionary discipline, the student shall have an informal conference with the Principal or the designated decision-maker. At the end of this conference, the student may receive no consequence, be suspended for less than 10 days, be recommended for long term suspension (more than 10 days), be recommended for expulsion, or subjected to alternative school placement. b) At the informal conference, the student has the right to:

i) Call his or her parent and permit the parent to attend the informal conference if he or she is able to within a reasonable amount of time; ii) Be informed of the charges and evidence against him or her; iii) Respond to the charges, verbally or in writing, to present his or her version of events, or not respond if he or she chooses; and, iv) Present evidence in his or her defense, including identifying witnesses to be interviewed.

c) The Principal or designee shall consider the evidence presented fully and fairly before reaching a decision.

d) If the student is suspended for less than ten (10) days, the school shall provide the student and parent(s) with a written notice stating what discipline was administered, the grounds for the decision and the duration of the consequence.

e) If the student is recommended for a suspension longer than ten (10) days or expulsion, a full hearing shall be scheduled within ten (10) days. Notice shall be sent to the student’s parents, informing them that the student has the right to a formal hearing unless he or she affirmatively waives it.


Step II: Formal Due Process a) Following a recommendation of long term suspension or expulsion, and prior to administration of the consequence, the student has an automatic right to a formal hearing, unless he or she affirmatively waives it. i) Written Notice. Written notice of the recommendation for long term suspension or expulsion shall be served by mail or in person to the student and parent or guardian within three (3) days of the alleged infraction. The notice shall contain at least the following: 1) The date, time and location of the appeal hearing;

2) Information as to who the parents should contact with questions or to reschedule the hearing; 3) Detailed statement of all charges with a reference to the code of conduct provision allegedly violated by the student; 4) A summary of the evidence supporting the allegation, including a list of the witnesses the district intends to call with a concise description of their testimony; 5) The recommended penalty for the alleged violation of the code of conduct; 6) Statement of the student’s due process rights as outlined hereinafter; 7) A copy of all evidence the district has acquired during its investigation and evidence the district intends to present at the hearing; and, 8) A statement that the right to a hearing may be waived and that

failure to appear at the hearing constitutes such a waiver. ii) Hearing Time, Place, and Manner. The hearing shall be held at a time and place reasonably convenient for the student and the parent or guardian. It shall be held not more than ten (10) days after the date of the alleged infraction. The hearing may be postponed up to five (5) days for good cause upon written request by the student or parent/guardian. The hearing shall be closed to the public unless the student or his representative requests in writing that it be open. iii) The student is entitled to a fair, impartial, and orderly hearing before a neutral disciplinary hearing committee to include no less than three (3) personnel from the school district, none of whom may be on the staff of the school from which the student is enrolled nor may the committee be comprised of any person involved in or who has prior knowledge of the underlying incident. iv) The Superintendent shall designate an impartial hearing officer to serve as the investigator, convener and administrative officer of the Disciplinary Hearing Committee but shall not vote. v) The student has the right to appear at the hearing accompanied by a parent or guardian and to be represented by anyone of the student/parents’ choice including legal counsel. The student has a right to designate a


representative to speak on his/her behalf, including a parent, guardian or legal counsel. vi) The school district is required to record and produce a transcript of all proceedings and to make such transcript available to the student and his parent/guardian. vii) The student has a right to call student or adult and district personnel as witnesses to testify on his or her behalf and to question the district’s witnesses. viii) The student has a right to testify on his/her own behalf but cannot be compelled to do so. ix) The student has a right to obtain and review any school record pertaining to the investigation of the alleged infraction prior to the hearing. b) The district shall have the power to subpoena witnesses, both its own and those requested by the student.

c) At the hearing, the hearing officer shall consider the following:

i) Whether the district provided the student with adequate notice; ii) Whether the Disciplinary Hearing Committee fully and fairly considered all evidence; iii) Whether the district complied with the requirements in the Code of Conduct; iv) Whether the district tried non-exclusionary alternatives before imposing the consequence at issue; v) Mitigating factors; and, vi) Additional facts that were not heard at the informal conference with the Principal or his/her designee.

d) The school district must prove by clear and convincing evidence that the student committed the alleged act, that such act violated the code of conduct, and that such act warrants long term suspension or expulsion. e) The Disciplinary Hearing Committee can: 1) uphold the recommendation of the principal or his/her designee; 2) modify the recommendation of the principal or his designee; or, 3) reverse the recommendation of the principal or his designee in its entirety and expunge the student’s record. Any decision to reverse or modify the decision rendered during the informal conference shall be reflected in the student’s school records. f) The District shall provide the parent or guardian of an expelled student information regarding educational alternatives available during the period of expulsion or long term suspension.


Step III: Appeal

a) Disciplinary Hearing Committee Appeal i. The Superintendent or his/her designee shall provide a written notice of

the Disciplinary Hearing Committee’s decision that outlines the reasoning for said decision within three (3) days of the hearing. This written notice shall also include the student’s right to appeal the Disciplinary Hearing Committee’s decision to the Superintendent.

ii. If a student or parent is aggrieved by the decision of the Disciplinary Hearing Committee an appeal can be requested within five (5) days of the student/parents’ receipt of the written notice.

b) Appeal to the Superintendent i. The Superintendent must schedule a meeting with the student and parent within five (5) days of the request for an appeal from the Disciplinary Hearing Committee.

ii. The Superintendent has three (3) days from the date of the meeting with the parent and student to provide a written notice of his/her decision that outlines the reasoning for said decision. The Superintendent can: 1) uphold the recommendation of the Disciplinary Hearing Committee; 2) modify the recommendation of the Disciplinary Hearing Committee; or, 3) reverse the recommendation of the Disciplinary Hearing Committee in its entirety and expunge the student’s record. iii. If the student/parent is aggrieved by the decision of the Superintendent, an appeal to the Board of Trustees can be requested in writing within five (5) days of the student/parents’ receipt of the written notice of the decision of the Superintendent.

c) Appeal to the Board of Trustees

i. The Superintendent must place the student disciplinary appeal request on the agenda for next scheduled school board meeting for consideration by the board of trustees.

ii. The Superintendent has three (3) days from the meeting of the board of trustees to provide written notice of the decision of the Board of Trustees to the parent/student that outlines the reasoning for said decision. The Board of Trustees can: 1) uphold the decision of the Superintendent; 2) modify the recommended of the Superintendent; or, 3) reverse the decision of the Superintendent in its entirety and expunge the student’s record. Any decision to modify or reverse the decision of the Superintendent shall be reflected in the student’s school records.

iii. If the student/parent is aggrieved by the decision of the Board of Trustees, an appeal can be made to the Chancery Court in the County in which the school district is located.


d) Appeal to Chancery Court

i. Any student/parent aggrieved by a disciplinary decision for long term suspension or expulsion made by the school district Board of Trustees may appeal the decision to the Chancery Court in which the school district is located within twenty (20) days of receipt of the written decision of the school district board of trustees.

ii. The Chancery Court on appeal may review the record of the proceedings and any additional evidence and make a finding whether the decision of the board of trustees was erroneous as a matter of law, not supported by substantial evidence, or arbitrary and capricious to the extent it is a violation of the constitutional due process rights.

iii. The record of the proceedings shall include a copy of the audio recording and transcript of the Disciplinary Hearing, a copy of the disciplinary referral at issue and all evidence produced at the Disciplinary Hearing; and copy of the written notice of the proceedings, including all written notices of decisions rendered by the Principal or his designee, Disciplinary Hearing Committee, Superintendent and the Board of Trustees.

This section does not apply to students with disabilities or students who have been ruled eligible for special education services under the Individuals with Disabilities Education Act. LEGAL REF: CROSS REF: Last Updated: 00/00/0000 Status: Original Adopted Date: 00/00/0000 Approved/Revised Date: 00/00/0000


400 MARYLAND AVE., S.W. WASHINGTON, DC 20202-2600 www.ed.gov

The Department of Education’s mission is to promote student achievement and preparedness for global competiveness by fostering educational excellence and ensuring equal access.

UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

August 1, 2016

Dear Colleague:

The U.S. Department of Education (Department) is committed to ensuring that all children with disabilities have meaningful access to a State’s challenging academic content standards that prepare them for college and careers. Consistent with these goals, the Individuals with Disabilities Education Act (IDEA) entitles each eligible child with a disability to a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet the child’s unique needs.1 20 U.S.C. §§1412(a)(1) and 1400(d)(1)(A). Under the IDEA, the primary vehicle for providing FAPE is through an appropriately developed individualized education program (IEP) that is based on the individual needs of the child. 34 CFR §§300.17 and 300.320-300.324. In the case of a child whose behavior impedes the child’s learning or that of others, the IEP Team must consider – and, when necessary to provide FAPE, include in the IEP – the use of positive behavioral interventions and supports, and other strategies, to address that behavior. 34 CFR §§300.324(a)(2)(i) and (b)(2); and 300.320(a)(4).

The Department has determined that this letter is significant guidance under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007). See www.whitehouse.gov/sites/default/files/omb/memoranda/fy2007/m07-07.pdf. Significant guidance is non-binding and does not create or impose new legal requirements. The Department is issuing this letter to provide LEAs and other responsible public agencies with information to assist them in meeting their obligations under the IDEA and its implementing regulations.

If you are interested in commenting on this letter, please email us your comment at [email protected] or contact Lisa Pagano at 202-245-7413 or [email protected]. For further information about the Department’s guidance processes, please visit www2.ed.gov/policy/gen/guid/significant-guidance.html.

Recent data on short-term disciplinary removals from the current placement strongly suggest that many children with disabilities may not be receiving appropriate behavioral interventions and

1While this letter focuses on requirements under the IDEA relating to FAPE in the least restrictive environment, students with disabilities also have rights under two civil rights laws that prohibit discrimination on the basis of disability—Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act (Title II). The Office for Civil Rights (OCR) in the U.S. Department of Education enforces Section 504 in public elementary and secondary schools. Also, in this context, OCR shares in the enforcement of Title II with the U.S. Department of Justice. More information about these laws is available at: www.ed.gov/ocr and www.ada.gov.


http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2007/m07-07.pdf



https://www2.ed.gov/policy/gen/guid/significant-guidance.html

http://www.ed.gov/ocr

http://www.ada.gov/

—Dear Colleague

supports, and other strategies, in their IEPs.2 During the 2013-2014 school year, 10 percent of all children with disabilities, ages 3 through 21, were subject to a disciplinary removal of 10 school days or less, with children of color with disabilities facing higher rates of removal.3 For instance, nineteen percent of black children with disabilities, ages 3 through 21, were subject to a removal of 10 school days or less within a single school year.4 In light of research about the detrimental impacts of disciplinary removals,5 including short-term disciplinary removals, the Department is issuing this guidance to clarify that schools, charter schools, and educational programs in juvenile correctional facilities must provide appropriate behavioral supports to children with disabilities who require such supports in order to receive FAPE and placement in the least restrictive environment (LRE). As a practical matter, providing appropriate behavioral supports helps to ensure that children with disabilities are best able to access and benefit from instruction.

The IDEA authorizes school personnel to implement a short-term disciplinary removal from the current placement, such as an out-of-school suspension, for a child with a disability who violates a code of student conduct. 34 CFR §300.530(b)(1). The Department strongly supports child and school safety, and this letter is not intended to limit the appropriate use of disciplinary removals that are necessary to protect children. Rather, the letter is a part of the Department’s broader work to encourage school environments that are safe, supportive, and conducive to teaching and learning, where educators actively prevent the need for short-term disciplinary removals by effectively supporting and responding to behavior.6,7 In keeping with this goal, this letter serves to remind school personnel that the authority to implement disciplinary removals does not negate their obligation to consider the implications of the child’s behavioral needs, and the effects of the use of suspensions (and other short-term removals) when ensuring the provision of FAPE.8

2 For purposes of this letter, we use “behavioral supports” to generally refer to behavioral interventions and supports, and other strategies to address behavior. 3 U.S. Department of Education, EDFacts Data Warehouse (EDW), OMB #1875-0240: “IDEA Part B Discipline Collection,” 2014. 4 Id. 5 Council of State Governments Justice Center and the Public Policy Research Institute. (2011). Breaking schools’ rules: a statewide study of how school discipline relates to students’ success and juvenile justice involvement. Available at https://csgjusticecenter.org/wp-content/uploads/2012/08/Breaking_Schools_Rules_Report_Final.pdf 6 “The Act and the regulations recognize that school officials need some reasonable degree of flexibility when disciplining children with disabilities who violate a code of student conduct. Interrupting a child’s participation in education for up to 10 school days over the course of a school year, when necessary and appropriate to the circumstances, does not impose an unreasonable limitation on a child with a disability’s right to FAPE.” 71 Fed. Reg. 46717 (Aug. 14, 2006). 7 More about the Department’s work is available at www.ed.gov/rethinkdiscipline 8 This letter does not address the obligations of school personnel following a disciplinary change in placement, including obligations to provide behavioral supports. This letter is intended to supplement the June 2009 Questions and Answers on Discipline Procedures (as revised) from OSERS, which provided guidance on discipline policies for school-age children to personnel in State educational agencies (SEAs) and local educational agencies (LEAs), and parents. Further, as the obligations of school personnel covered in this letter also apply to school personnel serving children with disabilities in juvenile correctional facilities, this letter is also intended to supplement the December 5,


https://csgjusticecenter.org/wp-content/uploads/2012/08/Breaking_Schools_Rules_Report_Final.pdf

—Dear Colleague

Additionally, this letter provides alternatives to disciplinary removal which schools can apply instead of exclusionary disciplinary measures.

We are issuing this guidance to clarify that the failure to consider and provide for needed behavioral supports through the IEP process is likely to result in a child not receiving a meaningful educational benefit or FAPE. In addition, a failure to make behavioral supports available throughout a continuum of placements, including in a regular education setting, could result in an inappropriately restrictive placement and constitute a denial of placement in the LRE. While such determinations are necessarily individualized, this guidance is intended to focus attention on the need to consider and include evidence-based behavioral supports in IEPs that, when done with fidelity, often serve as effective alternatives to unnecessary disciplinary removals, increase participation in instruction, and may prevent the need for more restrictive placements.

This letter is organized into five areas: x IDEA’s procedural requirements regarding evaluations, eligibility determinations, IEPs,

and behavioral supports;

x IDEA’s IEP content requirements related to behavioral supports; x Circumstances that may indicate potential denials of FAPE or of placement in the LRE; x Implications for short-term disciplinary removals and other exclusionary disciplinary

measures;9 x Conclusion, including additional information for parents and stakeholders.

I. IDEA Procedural Requirements Regarding Evaluations, Eligibility, IEPs, and Behavioral Supports

The IDEA and its implementing regulations require IEP Teams to follow certain procedures to ensure that IEPs meet the needs, including the behavioral needs, of children with disabilities. See 20 U.S.C. §1414(d) and 34 CFR §§300.320-300.324. Those needs are generally identified during the initial evaluation or reevaluation, which must, among other matters, use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the child, and assess the child in all areas related to the suspected disability,

2014 OSERS Dear Colleague Letter on the Individuals with Disabilities Education Act requirements that apply to the education of students with disabilities in correctional facilities. The June 2009 guidance can be found at http://idea.ed.gov/object/fileDownload/model/QaCorner/field/PdfFile/primary_key/7 and the December 5, 2014 letter can be found at http://www2.ed.gov/policy/gen/guid/correctional-education/index.html 9 For purposes of this document, we use “exclusionary disciplinary measures” as a descriptive term to discuss the range of actions that school personnel implement – in response to a child’s misbehavior or violation of a code of student conduct – where the child is removed and excluded from their classroom, from school grounds, or school activities either formally (e.g., suspension) or informally (e.g., asking the parent to keep the student at home for a day or more). Additional information regarding exclusionary disciplinary measures may be found in Section IV of this document.


http://idea.ed.gov/object/fileDownload/model/QaCorner/field/PdfFile/primary_key/7

http://www2.ed.gov/policy/gen/guid/correctional-education/index.html

—Dear Colleague

including, if appropriate, social and emotional status. 34 CFR §§300.304(b) and 300.304(c)(4); see also 34 CFR §§300.304-300.311. Further, the evaluation must use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical and developmental factors. 34 CFR §300.304(b)(3). Parents, classroom teachers, and other service providers will also have formal and informal information about an eligible child’s current functional (e.g., behavioral) performance for the IEP Team’s consideration. 34 CFR §§300.321 and 300.324. Once the IEP is developed, IEP Teams must: (1) review the child’s IEP periodically, but not less than annually, to determine whether the child’s annual goals are being achieved (34 CFR §300.324(b)(1)(i)), and (2) revise the IEP, as appropriate, to address any lack of expected progress towards the annual goals in the child’s IEP and in the general education curriculum, the child’s anticipated needs, or other matters. 34 CFR §300.324(b)(1)(ii).

There are a number of special factors that IEP Teams must consider in developing, reviewing, or revising a child’s IEP. The IDEA specifically requires IEP Teams to consider the use of positive behavioral interventions and supports, and other strategies, to address behavior for any child with a disability whose behavior impedes his or her learning or that of others. 20 U.S.C. §1414(d)(3)(B)(i). This requirement applies to all IEP Teams, regardless of the child’s specific disability, and to the development, review, and revision of IEPs (34 CFR §300.324(a)(2) and (b)(2)). Incidents of child misbehavior and classroom disruptions, as well as violations of a code of student conduct, may indicate that the child’s IEP needs to include appropriate behavioral supports. This is especially true when a pattern of misbehavior is apparent or can be reasonably anticipated based on the child’s present levels of performance and needs. To the extent a child’s behavior including its impact and consequences (e.g., violations of a code of student conduct, classroom disruptions, disciplinary removals, and other exclusionary disciplinary measures) impede the child’s learning or that of others, the IEP Team must consider when, whether, and what aspects of the child’s IEP related to behavior need to be addressed or revised to ensure FAPE. If the child already has behavioral supports, upon repeated incidents of child misbehavior or classroom disruption, the IEP team should meet to consider whether the child’s behavioral supports should be changed.

In general, IEP Team meetings provide parents (who are required members of the team) critical opportunities to participate in the decision-making process, raise questions and concerns regarding their child’s behavior, and provide input on the types of behavioral supports their children may need to facilitate their child’s involvement and progress in the general education curriculum. 34 CFR §§300.320(a), 300.321(a)(1), and 300.324(a)(1)(ii). Parents have the right to request an IEP Team meeting at any time, and public agencies generally must grant a reasonable request from a parent for an IEP Team meeting.10 See 20 U.S.C. 10 Assistance to States for the Education of Children with Disabilities and Early Intervention Programs for Infants and Toddlers with Disabilities, Final Rule, 64 Fed. Reg. 12406, 12581 (Mar. 12, 1999) explains, in response to public comment, that “A[regulatory] provision is not necessary to clarify that public agencies will honor ‘reasonable’ requests


—Dear Colleague

§1414(d)(4)(A)(i)(III) and 34 CFR §300.324(b)(1)(ii)(C). We believe it would be appropriate for a parent to request an IEP Team meeting following disciplinary removals or changes in the child’s behavior that impede the child’s learning or that of others, as these likely indicate that the IEP, as written or implemented, may not be properly addressing the child’s behavioral needs.11 Whenever appropriate, the child with a disability should also be present during IEP Team meetings. 34 CFR §300.321(a)(7).

When an IEP Has Already Been Developed for a School Year

In instances where a child with a disability is subject to a disciplinary removal after the IEP for that school year has been developed and the parents and the relevant school officials agree that the IEP needs to be revised to address the behavior, but circumstances prevent the IEP Team from convening prior to the child’s return to school, the IDEA regulations permit the parent and public agency to agree not to convene an IEP Team meeting and instead to develop a written document to amend or modify the current IEP. 34 CFR §300.324(a)(4)(i). This option could be used to provide the child with the necessary behavioral supports upon the child’s return to school. However, if changes are made to the child’s IEP in this manner, the agency must ensure that the IEP Team is informed of those changes. 34 CFR §300.324(a)(4)(ii).

II. IDEA’s IEP Content Requirements Related to Behavioral Supports

Research shows that school-wide, small group, and individual behavioral supports that use proactive and preventative approaches, address the underlying cause of behavior, and reinforce positive behaviors are associated with increases in academic engagement, academic achievement, and fewer suspensions and dropouts.12 In short, children are more likely to achieve when they are directly taught predictable and contextually relevant school and classroom routines and expectations, acknowledged clearly and consistently for displaying positive

by parents for a meeting to review their child’s IEP. Public agencies are required under the statute and these final regulations to be responsive to parental requests for such reviews.” 11 T.K., S.K., individually and on behalf of L.K. v. New York City Department of Education, Brief of the United States as Amicus Curiae Supporting Appellees (2015). Available at https://www.justice.gov/sites/default/files/crt/legacy/2015/03/16/tknycdoebrief.pdf 12 Christle, C. A., Jolivette, K., & Nelson, C. M. (2005). Breaking the school to prison pipeline: identifying school risk and protective factors for youth delinquency. Exceptionality, 13(2), 69-88. See also Crone, D. A., & Hawken, L. S. (2010). Responding to problem behavior in schools: the behavior education program. Guilford Press. See also Liaupsin, C. J., Umbreit, J., Ferro, J. B., Urso, A., & Upreti, G. (2006). Improving academic engagement through systematic, function-based intervention. Education and Treatment of Children, 29, 573-591. See also Luiselli, J. K., Putnam, R. F., Handler, M. W., & Feinberg, A. B. (2005). Whole‐school positive behaviour support: effects on child discipline problems and academic performance. Educational Psychology, 25(2-3), 183-198. See also Putnam, R., Horner, R. H., & Algozzine, R. (2006). Academic achievement and the implementation of school-wide behavior support. Positive Behavioral Interventions and Supports Newsletter, 3(1), 1-6.


https://www.justice.gov/sites/default/files/crt/legacy/2015/03/16/tknycdoebrief.pdf

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academic and social behavior, consistently prompted and corrected when behavior does not meet expectations, and treated by others with respect.13

However, when a child with a disability experiences behavioral challenges, including those that result in suspensions or other exclusionary disciplinary measures, appropriate behavioral supports may be necessary to ensure that the child receives FAPE. In the same way that an IEP Team would consider a child’s language and communication needs, and include appropriate assistive technology devices or services in the child’s IEP (34 CFR §300.324(a)(2)(iv) and (v)) to ensure that the child receives a meaningful educational benefit, so too must the IEP Team consider and, when determined necessary for ensuring FAPE, include or revise behavioral supports in the IEP of a child with a disability exhibiting behavior that impedes his or her learning or that of others. 34 CFR §§300.320(a)(4) and 300.324(a)(2)(i).

Therefore, as part of the development, review and, as appropriate, revision of the IEP, IEP Teams should determine whether behavioral supports should be provided in any of three areas: (1) special education and related services, (2) supplementary aids and services, and (3) program modifications or supports for school personnel. 34 CFR §300.320(a)(4).

IEPs should contain behavioral supports supported by evidence—IDEA specifically requires that both special education and related services and supplementary aids and services be based on peer-reviewed research to the extent practicable. 34 CFR §300.320(a)(4). As a matter of best practice, we strongly encourage schools to consider how the implementation of behavioral supports within the IEP could be facilitated through a school-wide, multi-tiered behavioral framework, described at greater length below.

Special Education and Related Services

Behavioral supports provided as part of a child’s special education and related services may be necessary to ensure that the child’s IEP is designed to enable the child to advance appropriately toward attaining the annual goals specified in the IEP, to be involved in and make progress in the general education curriculum, and to participate in extracurricular and other nonacademic activities. 34 CFR §§300.320(a)(4)(i) and (ii). Interventions and supports that could assist a child with a disability to benefit from special education may include instruction and reinforcement of school expectations, violence prevention programs, anger management groups, counseling for mental health issues, life skills training, or social skills instruction. Please see the end of this section for additional tools and resources to assist with the implementation of behavioral supports. 13 Algozzine, B., Wang, C., & Violette, A. S. (2011). Reexamining the relationship between academic achievement and social behavior. Journal of Positive Behavioral Interventions, 13, 3-16. See also McIntosh, K., Chard, D. J., Boland, J. B., & Horner, R. H. (2006). Demonstration of combined efforts in school-wide academic and behavioral systems and incidence of reading and behavior challenges in early elementary grades. Journal of Positive Behavioral Interventions, 8, 146-154.


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Supplementary Aids and Services

Public agencies must comply with the requirement to make available a continuum of alternative placements as required under 34 CFR §§300.114-300.116, which includes the provision of supplementary aids and services (e.g. behavioral supports) throughout the continuum. Under 34 CFR §300.42, supplementary aids and services are defined to include aids, services, and other supports that are provided in regular education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with 34 CFR §§300.114-300.116.

Appropriate supplementary aids and services could include those behavioral supports necessary to enable a child with a disability to be educated in regular classes or the setting determined to be the child’s appropriate placement in the LRE. Such behavioral supports might include meetings with a behavioral coach, social skills instruction, counselor, or other approaches. In general, placement teams may not place a child with a disability in special classes, separate schooling, or other restrictive settings outside of the regular educational environment solely due to the child’s behavior when behavioral supports through the provision of supplementary aids and services could be provided for that child that would be effective in addressing his or her behavior in the regular education setting.14 34 CFR §§300.114-300.116. Children with disabilities may only be removed from the regular educational environment when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR §300.114(a)(2)(ii).

Program Modifications or Supports for School Personnel

In addition to the behavioral supports that may be provided directly to children with disabilities, program modifications or supports for school personnel, provided on behalf of the child, may also be necessary to support the child’s involvement and progress in the general education curriculum, advancement towards attaining the annual goals specified in the IEP, and participation in extracurricular and other nonacademic activities. 34 CFR §§300.320(a)(4)(i) and (ii). School personnel may need training, coaching, and tools to appropriately address the behavioral needs of a particular child. Supports for school personnel may be designed, as appropriate, to better implement effective instructional and behavior management strategies and specific behavioral interventions that are included in the child’s IEP.

14 We refer to the “placement team,” rather than the IEP Team, as IDEA’s implementing regulations specify that placement decisions must be made by a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options. 34 CFR §300.116(a)(1).


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Implementation of a Multi-Tiered Behavioral Framework

Research shows that implementing evidence-based, multi-tiered behavioral frameworks can help improve overall school climate, school safety, and academic achievement for all children, including children with disabilities.15 In general, behavioral supports are most effectively organized within a multi-tiered behavioral framework that provides instruction and clear behavioral expectations for all children, targeted intervention for small groups not experiencing success, and individualized supports and services for those needing the most intensive support. In recent years, the Department has disseminated a number of tools and resources to assist schools in the creation of safe and supportive school climates conducive to learning, including the implementation of effective alternatives to disciplinary removal. These resources include:

x Supporting and Responding to Behavior: Evidence-based Classroom Strategies for Teachers, a document summarizing evidence-based, proactive, and responsive classroom behavior support and intervention strategies for teachers.16

x Positive Behavioral Intervention and Supports: Implementation Blueprint and Self-Assessment, a guide to develop local capacity for sustainable, culturally and contextually relevant, and high-fidelity implementation of multi-tiered practices and systems of support.17

x 2014 School Discipline Guidance Package, including guidance on how public elementary and secondary schools can meet their legal obligations to administer discipline without discriminating on the basis of race, color or national origin and a set of guiding principles to assist communities in improving school climate and school discipline.18

These and other resources can be found at www.ed.gov/rethinkdiscipline and http://ccrs.osepideasthatwork.org.

III. Circumstances that May Indicate Potential Denials of FAPE or of Placement in the LRE

It is incumbent upon IEP Teams to implement IDEA’s procedural and substantive requirements to ensure that children with disabilities receive the behavioral supports they need to enable them to advance appropriately toward attaining the annual goals specified in their IEPs and to be

15 Bradshaw, C., Koth, C.W., Thornton, L.A., & Leaf, P.J., (2009). Altering school climate through school-wide positive behavioral interventions and supports: findings from a group-randomized effectiveness trial. Prevention Science 10(2), 100-115. 16 Available at https://www.osepideasthatwork.org/evidencebasedclassroomstrategies/ 17 Available at http://www.pbis.org/blueprint/implementation-blueprint 18 Available at http://www2.ed.gov/policy/gen/guid/school-discipline/fedefforts.html#guidance


http://www.ed.gov/rethinkdiscipline

http://ccrs.osepideasthatwork.org/

https://www.osepideasthatwork.org/evidencebasedclassroomstrategies/

http://www.pbis.org/blueprint/implementation-blueprint

http://www2.ed.gov/policy/gen/guid/school-discipline/fedefforts.html#guidance

—Dear Colleague

involved in and make progress in the general education curriculum. 20 U.S.C. §§1414(d)(1)(A)(i)(IV); 1414(d)(3)(B)(i) and 1414(d)(3)(C). A failure to implement these procedural requirements or provide needed behavioral supports to a child with a disability could result in the child not receiving a meaningful educational benefit, and therefore constitute a denial of FAPE and/or a denial of placement in the LRE (i.e., an unduly restrictive placement).

A determination of whether there is a denial of FAPE is a fact-based determination, to be made on a case-by-case basis. Factors to consider include: whether the public agency has failed to follow the procedures IDEA requires when developing, reviewing, or revising the child’s IEP, or has failed to consider and/or provide a child with a disability with necessary behavioral supports when the child’s behavior impedes his or her learning or that of others; or whether the child’s IEP is reasonably calculated to provide a meaningful educational benefit in the absence of behavioral supports.

Circumstances that may indicate either a procedural or substantive failure in the development, review, or revision of the IEP include, but are not limited to, the following19:

x The IEP Team did not consider the inclusion of positive behavioral interventions and supports in response to behavior that impeded the child’s learning or that of others;

x School officials failed to schedule an IEP Team meeting to review the IEP to address behavioral concerns after a reasonable parental request;

x The IEP Team failed to discuss the parent’s concerns about the child’s behavior, and its effects on the child’s learning, during an IEP Team meeting;

x There are no behavioral supports in the child’s IEP, even when the IEP Team determines they are necessary for the child;

x The behavioral supports in the IEP are inappropriate for the child (e.g., the frequency, scope or duration of the behavioral supports is insufficient to prevent behaviors that impede the learning of the child or others; or consistent application of the child’s behavioral supports has not accomplished positive changes in behavior, but instead has resulted in behavior that continues to impede, or further impedes, learning for the child or others);

x The behavioral supports in the child’s IEP are appropriate, but are not being implemented or not being properly implemented (e.g., teachers are not trained in classroom

19 Under 34 CFR §300.513(a), a hearing officer’s determination of whether a child received FAPE must be based on substantive grounds. In matters alleging a procedural violation, a hearing officer may find that a child did not receive FAPE only if the procedural inadequacies: (1) impeded the child’s right to FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the parent’s child; or (3) caused a deprivation of educational benefit. 34 CFR §300.513(a)(2)(i)–(iii). Although best viewed as a procedural requirement, a failure to follow 34 CFR §300.324(a)(2)(i) could result in a substantive denial of FAPE if any of the circumstances in 34 CFR §§300.513(a)(2)(i)–(iii) are present. As this is a fact-based determination, Section III provides examples of facts and circumstances that may indicate that a procedural failure has resulted in a denial of FAPE.


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management responses or de-escalation techniques or those techniques are not being consistently implemented); or

x School personnel have implemented behavioral supports not included in the IEP that are not appropriate for the child.

Circumstances that may indicate that the child’s IEP is not reasonably calculated to provide a meaningful educational benefit include, but are not limited to, the following:

x The child is displaying a pattern of behaviors that impede his or her learning or that of others and is not receiving any behavioral supports;

x The child experiences a series of disciplinary removals from the current placement of 10 days or fewer (which do not constitute a disciplinary change in placement) for separate incidents of misconduct that impede the child’s learning or that of others, and the need for behavioral supports is not considered or addressed by the IEP Team;20 or

x The child experiences a lack of expected progress toward the annual goals that is related to his or her disciplinary removals or the lack of behavioral supports, and the child’s IEP is neither reviewed nor revised.

A determination of whether there is a denial of placement in the LRE is also a fact-based determination. Factors to consider include whether the child’s IEP is designed to enable the child to be educated and participate with nondisabled children in extracurricular and other nonacademic activities in the absence of behavioral supports. Circumstances that may indicate that the child’s placement in the LRE may not be appropriate include, but are not limited to, a scenario in which a continuum of placements that provides behavioral supports is not made available (e.g., behavioral supports not provided in the regular educational setting), and, as a result, the IEP inappropriately calls for the child to be placed in special classes, separate schooling, or another restrictive placement outside the regular educational environment (e.g., home instruction, home tutoring program, or online learning program).

IV. Implications for Short-Term Disciplinary Removals and Other Exclusionary Disciplinary Measures

Schools should note that recent research demonstrates that disciplinary measures such as short-term removals from the current placement (e.g., suspension), or other exclusionary disciplinary measures that significantly impede the implementation of the IEP, generally do not help to

20 Under 34 CFR §300.536 a series of disciplinary removals that constitute a pattern is a change in placement. A pattern of removals is a series of removals that total more than 10 school days within a school year, for behavior that is substantially similar to the child’s behavior in previous incidents that led to removals, with consideration for additional factors such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.


—Dear Colleague

reduce or eliminate reoccurrence of the misbehavior. In fact, there is a growing awareness that school suspensions produce unintended and undesirable results. Longitudinal studies, for example, have found that suspension from school does not deter misbehavior. These studies found a high rate of repeat offending in out-of-school suspension, ranging from 35% to 42%.21 Research also shows that suspension from school is associated with significant adverse consequences for the children suspended.22 Suspensions from school are consistently associated with lower academic performance.23 As a suspended child’s education is interrupted, he or she is more likely to fall behind, to become disengaged from school, and to drop out.24

Removals from the current placement generally do not address the needs of a child with a disability for positive behavioral interventions and supports. Accordingly, we remind States, LEAs, and IEP Teams that while 34 CFR §300.530 explicitly permits school personnel to implement short-term disciplinary removals from the current placement, such removals may indicate a need to review and revise the child’s IEP to address his or her behavioral needs. In addition, exclusionary disciplinary measures that do not constitute a removal from the current placement may also indicate the need to review and revise the child’s IEP.

Authority of School Personnel under 34 CFR §300.530

Under IDEA and its implementing regulations, school personnel have the authority to remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for up to 10 consecutive school days in a school year, to the extent those alternatives are applied to children without disabilities, and for additional removals of up to 10 school days in the same school year for separate incidents of misconduct, provided that the additional removals do not constitute a change of placement. 34 CFR §§300.530(b) and 300.536.25

While the IDEA and its implementing regulations recognize that school officials need some reasonable degree of flexibility when disciplining children with disabilities who violate a code of student conduct and that school safety is paramount, the Department cautions that the use of short-term disciplinary removals from the current placement may indicate that a child’s IEP, or 21 Skiba, R.J., Shure, L.A., Middelberg, L.V., & Baker, T.L. (2012). Reforming school discipline and reducing disproportionality in suspension and expulsion. In Jimerson, S.R., Nickerson, A.B., Mayer, M.J., & Furlong, M.J. (Eds.) Handbook of School Violence and School Safety, 2nd Ed. New York: Routledge. 22 Lee, T., Cornell, D., Gregory, A., & Xitao, F. (2011). High suspension schools and dropout rates for black and white students. Education & Treatment Of Children, 34(2), 167-192. See also Brooks, K., Schiraldi, V., & Zeidenberg, J. (2000). School house hype: two years later. Washington, DC: Justice Policy Institute / Covington, KY: Children’s Law Center. See also Civil Rights Project. (2000). Opportunities suspended: the devastating consequences of zero tolerance and school discipline policies. Cambridge, MA. 23 Id. 24 Id. 25 Disciplinary removals of more than 10 consecutive school days or a series of removals that cumulate to more than 10 school days in a school year that constitute a pattern are considered a change in placement. 34 CFR §300.536.


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the implementation of the IEP, does not appropriately address his or her behavioral needs. This, in turn, may result in the child not receiving a meaningful educational benefit, which could constitute a denial of FAPE. As noted above, these determinations are highly factual, and would be made on a case-by-case basis. We are concerned, however, that some SEAs and LEAs may have erroneously interpreted the IDEA to provide school personnel with the broad authority to implement short-term removals without restriction and without regard to whether the child’s IEP is properly addressing his or her behavioral needs. It has come to the Department’s attention that there are a number of legal memos and technical assistance documents which have erroneously characterized the 10-day period as “free days.”26

This characterization may discourage school personnel from considering whether behavioral supports are needed to address or improve patterns of behavior that impede learning before, during, or after short-term disciplinary removals are implemented. The Department reminds SEAs and LEAs that, under IDEA, IEP Teams have an obligation to develop appropriate IEPs based on the individual needs of each child. Teachers must also be fully informed about their specific responsibilities related to implementation of the child’s IEP, including the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP. 34 CFR §300.323(d). Further, IDEA requires States and LEAs to ensure that all personnel necessary to carry out the purposes of Part B of IDEA are appropriately and adequately prepared and trained. 34 CFR §§300.156 and 300.207. This responsibility would include appropriately training teachers and other school personnel to provide required behavioral supports to children with disabilities. Therefore, a failure to provide appropriate behavioral supports (because they are not offered or because teachers and other staff are not adequately trained to implement such supports) that results in the child not receiving a meaningful educational benefit may constitute a denial of FAPE.

Use of Exclusionary Disciplinary Measures

Schools should take care when implementing exclusionary disciplinary measures that significantly interfere with a child’s instruction and participation in other school activities. In some schools, staff are properly trained to implement and document measures such as the use of study carrels, time outs, and restrictions in privileges, in a manner consistent with a child’s right to FAPE.27 However, in other schools, staff may not be properly trained in the appropriate use of 26 National Council on Disability. (2015). Breaking the school-to-prison pipeline for students with disabilities. Available at https://www.ncd.gov/sites/default/files/Documents/NCD_School-to-PrisonReport_508-PDF.pdf. This report highlights an excerpt from a legal pamphlet designed for school districts: “Schools have free use of up to 10 school days of short-term removals per school year without IDEA implications. The days can be used in any combination, quickly or slowly, although caution would warrant using the 10 'free' days judiciously over the school year, and avoiding multiple suspension days if at all possible.” 27 The Department has previously stated that the use of measures such as study carrels, time outs, or other restrictions in privileges is permissible so long as such measures are not inconsistent with a student’s IEP (OSEP Memorandum to Chief State School Officers, Questions and Answers on Disciplining Students with Disabilities, April 1995).


https://www.ncd.gov/sites/default/files/Documents/NCD_School-to-PrisonReport_508-PDF.pdf

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these measures; consequently, their improper use of these measures could rise to the level of a disciplinary removal. These exclusionary disciplinary measures also could include:

x A pattern of office referrals, extended time excluded from instruction (e.g., time out), or extended restrictions in privileges;

x Repeatedly sending children out of school on “administrative leave” or a “day off” or other method of sending the child home from school;

x Repeatedly sending children out of school with a condition for return, such as a risk assessment or psychological evaluation; or

x Regularly requiring children to leave the school early and miss instructional time (e.g., via shortened school days).28

In general, the Department does not consider the use of exclusionary disciplinary measures to be disciplinary removals from the current placement for purposes of 34 CFR §300.530, so long as children with disabilities are afforded the opportunity to continue to be involved in and make progress in the general education curriculum, receive the instruction and services specified on their IEPs, and participate with nondisabled children to the extent they would have in their current placement.29 It is likely that the exclusionary disciplinary measures listed above, if implemented repeatedly, would constitute a disciplinary removal from the current placement. For example, when school personnel regularly require a child with a disability to leave school early and miss instructional time due to their behavior, it is likely that the child’s opportunity to be involved in and make progress in the general education curriculum has been significantly impeded; in such circumstances, sending the child home early would constitute a disciplinary removal from the current placement. To the extent that schools implement exclusionary disciplinary measures in a manner tantamount to a suspension – or other removal from the

28 We have deliberately omitted from this list of examples any reference to referrals to law enforcement authorities due to our recommendation to schools, described in the Department’s Guiding Principles: A Resource Guide for Improving School Climate and Discipline, that school resource officers not be involved in routine disciplinary matters. The Guiding Principles can be found at www2.ed.gov/policy/gen/guid/school-discipline/guiding-principles.pdf 29 The Department would apply the same analysis to the use of exclusionary discipline measures that apply to in-school suspensions, for purposes of 34 CFR §300.530. In the Preamble to the August 14, 2006 final Part B regulations, the Department explained: “It has been the Department’s long term policy that an in-school suspension would not be considered a part of the days of suspension addressed in 34 CFR §300.530 as long as the child is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified on the child’s IEP, and continue to participate with nondisabled children to the extent they would have in their current placement. This continues to be our policy.” The explanation concludes by indicating that whether an in-school suspension would constitute a day of suspension would depend on the unique facts and circumstances of each case. 71 Fed. Reg. 46715 (Aug. 14, 2006).


http://www2.ed.gov/policy/gen/guid/school-discipline/guiding-principles.pdf

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child’s current placement – they are required to fulfill their statutory obligation to report such removals,30 and act within the authority of school personnel provided under 34 CFR §300.530.

Further, as we noted earlier, the use of exclusionary disciplinary measures may indicate that a child’s IEP, or the implementation of the IEP, does not appropriately address his or her behavioral needs. To ensure that each child receives a meaningful educational benefit, IEP Teams must consider the need for positive behavioral interventions and supports for children with disabilities whose behavior impedes their learning or that of others, and, when determined necessary to ensure FAPE, include or revise needed behavioral supports in the child’s IEP. Such behavioral supports also may include supports for school personnel, so that teaching staff are trained in best uses of such behavioral supports.

V. Conclusion

Children with disabilities are at a greater risk of disciplinary removals that significantly interrupt their learning, often unnecessarily. These risks are increased for children of color with disabilities. In many cases, we have reason to believe these removals are due to minor instances of misbehavior that are unrelated to issues of child or school safety, and can and should be addressed through supports and guidance.31

When behavioral supports are not provided and, as a result, a child with a disability is repeatedly removed from his or her current placement through suspensions for behavior that impedes his or her learning or that of others, a number of options are available to assist parents in challenging the appropriateness of their child’s IEP. First, as noted earlier, parents have the right to request an IEP Team meeting at any time, and public agencies generally must grant a reasonable parental request for an IEP Team meeting. Parents may be particularly interested in making such a request following changes in the child’s behavior that result in disciplinary removals. Further, parents, individuals, and organizations may also pursue child-specific or systemic remedies through the State complaint procedures outlined below.

30 IDEA mandates that States provide data each year to the Secretary of Education and the public on the use of long-term suspensions and expulsions (20 U.S.C. §1418(a)(1)(A)(v)(III)) and on the incidence and duration of disciplinary actions, including suspensions of one day or more, by race, ethnicity, limited English proficiency status, gender, and disability category (20 U.S.C. §1418(a)(1)(D)). Further, States are required to collect and examine data to determine whether significant disproportionality based on race and ethnicity is occurring in the State and the LEAs of the State with respect to the incidence, duration, and type of disciplinary actions, including suspension and expulsions (34 CFR §300.646(d)(1)(C)), and whether significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities among LEAs in the State or compared to the rates for nondisabled children within LEAs (34 CFR §300.170). 31 Skiba, R. J., Chung, C. G., Trachok, M., Baker, T., Sheya, A., Hughes, R. L. (2014). Parsing disciplinary disproportionality: Contributions of infraction, student, and school characteristics to out-of-school suspension and expulsion. American Educational Research Journal, 51, 640-670.


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When conditions persist and a denial of FAPE is suspected, a parent or a public agency may file a due process complaint to request a due process hearing on any matter relating to the identification, evaluation, or educational placement of a child with a disability, or the provision of FAPE to the child. 34 CFR §300.507(a). If the dispute cannot be resolved through the resolution process, the parent or public agency must have an opportunity for an impartial due process hearing. 34 CFR §§300.511(a), 300.512, 300.513 and 300.515.

A second important method for resolving disputes available under IDEA is the mediation process described in 34 CFR §300.506. The mediation process, which must be voluntary, offers a less formal opportunity for parents and public agencies to resolve disputes about any matter, including disciplinary removals, under 34 CFR part 300, including matters arising prior to the filing of a due process complaint. 34 CFR §300.506(a).

Lastly, States are also required to establish and implement their own State complaint procedures, separate from their due process procedures, for resolving any complaint that meets the requirements of 34 CFR §300.153. 34 CFR §300.151(a)(1). Any organization or individual, including one from another State, may file a signed written State complaint alleging that a public agency has violated a requirement of either Part B of the Act or the Part B regulations.

Additional information regarding dispute resolution is available at:

x Questions and Answers on IDEA Part B Dispute Resolution Procedures, revised July 2013 (OSEP Memo 13-08) (http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqafinalmemo-7-23-13.pdf); and

x Dear Colleague Letter on a public agency’s Use of Due Process Procedures After a Parent Has Filed a State Complaint, April 2015 (https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/dcl04152015disputeresolution2q2015.pdf)

The Office of Special Education and Rehabilitative Services (OSERS) is committed to ensuring that children with disabilities have access to learning environments that are safe, supportive, and conducive to learning. In such learning environments, educators have the skills and tools to prevent disciplinary incidents before they happen, use effective behavioral supports, teach behavioral expectations, and implement other behavioral management strategies. In many schools, effective behavioral supports have been implemented within a multi-tiered behavioral framework to organize school efforts to support children with disabilities and their peers. In this way, schools facilitate the provision of FAPE by providing children with disabilities with the behavioral supports they need to prevent, or bring an end to, disciplinary approaches that may unduly interfere with instruction and the implementation of IEPs. Further, this focus on prevention helps to ensure that educators receive the training, coaching, and other supports they


http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqafinalmemo-7-23-13.pdf

http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqafinalmemo-7-23-13.pdf

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/dcl04152015disputeresolution2q2015.pdf

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/dcl04152015disputeresolution2q2015.pdf

—Dear Colleague

need to help children with disabilities, and their peers, to focus on learning and succeed in school.

To better develop and implement appropriate IEPs for children whose behavior impedes the child’s learning or that of others, and to ensure that behavioral supports are available throughout the continuum of placements, including in the regular education setting, OSERS has enclosed with this letter two technical assistance documents that we first released in November 2015 as part of the 40th Anniversary of IDEA:

1) Supporting and Responding to Behavior: Evidence-Based Classroom Strategies for Teachers: https://www.osepideasthatwork.org/evidencebasedclassroomstrategies

2) Positive Behavioral Interventions and Supports: Implementation Blueprint and Self-Assessment: http://www.pbis.org/blueprint/implementation-blueprint

These two documents provide additional information on evidenced-based classroom strategies to support and respond to behavior and on organizing practices in an integrated manner in a multi-tiered system of support.

If you have any questions or comments, please contact the Office of Special Education Programs Education Program Specialist, Lisa Pagano at 202-245-7413 or [email protected].

Thank you for your support and your continued interested in improving education access and opportunity for children with disabilities.

Sincerely,

/s/ Sue Swenson Acting Assistant Secretary Special Education and Rehabilitative Services

/s/ Ruth E. Ryder Acting Director Office of Special Education Programs


https://www.osepideasthatwork.org/evidencebasedclassroomstrategies




Criminal Liability Regarding Cyberbullying and

Harassment

• Cyberstalking• Miss. Code Ann. § 97-45-15: Unlawful to

use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or physical injury to the property of any person

• Unlawful to electronically mail or electronically communicate to another repeatedly for the purpose of threatening, terrifying or harassing any person

• Cyberstalking (cont’d)• Miss. Code Ann. § 97-45-15: Unlawful to

electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct or criminal conduct of the person electronically mailed with the intent to threaten, terrify or harass


• Cyberstalking (cont’d)• Miss. Code Ann. § 97-45-15: Unlawful to

knowingly permit an electronic communication device under the person’s control to be used for any purpose prohibited by this section

• Felony: Up to 2 years imprisonment, $5000 fine, or both

• Obscene Electronic Communications:• Miss. Code Ann. § 97-29-45: Unlawful to make any

comment, request, suggestion or proposal by means of telecommunications or electronic communication which is obscene, lewd or lascivious with intent to abuse, threaten or harass any party to a telephone conversation, telecommunication or electronic communication

• Unlawful to make a telecommunication or electronic communication with intent to terrify, intimidate or harass, and threaten to inflict injury or physical harm to any person or to his property

• Unlawful to make a telephone call without disclosing identity and with intent to annoy, abuse, intimidate or harass any person at the called number

• Obscene Electronic Communications (cont’d):

• Miss. Code Ann. § 97-29-45: Unlawful to make or cause the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number

• Unlawful to make repeated telephone calls, during which conversation ensures, solely to harass any person at the called number

• Unlawful to knowingly permit a computer or telephone under a person’s control to be used for any purpose prohibited under the statute.

• First Offense: Up to 6 months imprisonment, $500 fine


• Posting Injurious Messages• Miss. Code Ann. § 97-45-17: Unlawful to

post a message through use of any

communication, including the Internet or a

computer or other electronic communications

(e.g., text messaging) for the purpose of

causing injury to a person.

• Felony: Up to 5 years imprisonment, $10,000

fine

• Certain Acts Against Students Prohibited• Miss. Code Ann. § 37-11-20: Unlawful to

intimidate, threaten or coerce by force or

threats of force any student for the purpose of

interfering with right of student to attend

classes or of causing the student not to attend

such classes

• Misdemeanor: Up to 6 months imprisonment,

$500 fine

• Photographing, Filming In Violation of Expectation of Privacy• Miss. Code Ann. § 97-29-63: Unlawful to film,

photograph, record another person in a place where

the person is in a state of undress and has a

reasonable expectation of privacy (e.g., bathroom,

locker room).

• Unlawful to film, photograph, record the image of

another person under or through clothing worn by that

person to view the body or undergarments worn by

the other person when that person has a reasonable

expectation that the person’s body or undergarments

would not be viewed.

• Felony: Up to 5 years imprisonment, $5,000 fine


• Online Impersonation• Miss. Code Ann. § 97-45-33: Unlawful to knowingly

and without consent impersonate another actual

person through or on an Internet website or by

electronic means for purposes of harming,

intimidating, threatening or defrauding another

person.

• Misdemeanor: Punishable by a fine of not less than

$250.00 and not exceeding $1,000.00 or by

imprisonment for not less than 10 days and not more

than one year, or both.

• Accessory Crimes/ Directing or Causing Minor to Commit Felony

• Accessory Before the Fact: Miss. Code Ann. § 97-1-3 Every person who is an accessory to a felony, before the fact, shall be deemed a principal and shall be punished as such.

• Accessory After the Fact: Miss. Code Ann. § 97-1-5 Every person who knowingly helps conceal, aid or assist a felon with intent to help the felon avoid arrest, conviction or punishment. Penalty: Up to 5 years, or $1,000 fine.

• Directing/Causing Minor to Commit Felony: Miss. Code Ann. § 97-1-6 Any person over the age of 17 who shall direct or cause any person under the age of 17 to commit a crime which would be a felony if committed by an adult. Penalty: Felony, Up to 20 years imprisonment, $10,000.

Conclusion• “Unfortunately, no number of policies and no

amount of policing will stop those who are heartless enough and vicious enough to abuse others just because they believe they can get away with it. Laws and rule books are necessary checks on human behavior, but there is a limit to what they can accomplish.” Cynthia Tucker, Syndicated Columnist, Atlanta-Journal Constitution, October 10, 2010.


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