Case: 12-60264
Document: 00513162565
Page: 18
Date Filed: 08/20/2015
No. 12-60264
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
18
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents