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Emory Law Journal

Abstract

In the Fifth Circuit Court of Appeals case Bell v. Itawamba, student free speech rights, a vigilantly protected constitutional freedom, came to clash with rap music, an art form viciously misunderstood by much of America. The distaste for rap ultimately won out—the court crafted a new, more restrictive student free speech doctrine to render the rap lyrics in question, which were produced and published off the school’s campus, regulable by the school board. This ruling is legally noteworthy because it dramatically augments school boards’ authority to regulate student expression, even when such expression does not take place at school. On a deeper level, the case is also culturally significant in demonstrating how the denigration of rap music has weaponized this art form against its own creators, effectively criminalizing their creativity.

This Comment offers a critical assessment of Bell v. Itawamba. It begins with an in-depth history of rap music, chronicling rap’s origins as a language of liberation rooted in the Civil Rights and Black Power Movements; its eventual monetization, commercialization, and co-optation; and its current criminalization in public schools. After discussing the existing Supreme Court student free speech framework, this Comment shows how Bell ignored, side-stepped, and sometimes downright contradicted precedent to uphold a more restrictive student free speech framework that disparages the social utility and value of rap music. Finally, this Comment argues for the express adoption of a “true threat” standard for student free speech, a standard that strikes the proper balance between pedagogical concerns and students’ free speech rights while diminishing the educational and social harms that currently disproportionately affect Black students on account of rap’s de facto illegality in the public school context.

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