Case: 12-60264
Document: 00513162565
Page: 17
Date Filed: 08/20/2015
No. 12-60264
. . . 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 offcampus 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”.
(footnotes and internal quotation marks omitted).
659 F.3d at 375
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
17
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