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Pillars of strength: An agreement to agree upon something later is no agreement at all

Author By Christopher P. FinneyPosted on

When drafting leases, contracts and other agreements, frequently my client informs me that a key provision has been negotiated or an impasse has been resolved by making an agreement to negotiate an agreement later.

For example, the question the parties have is: “what is to be the lease rate upon a renewal in five years?”  Or, “what will be the location of a utility easement across land of the seller to serve new property being acquired by the buyer?”  And the answer the parties provide is: “will be negotiated at that time” or “we will decide at a later date.”

These answers are, of course, not answers at all.  And they constitute no agreement at all, for what if the parties fail to agree?

In the lease scenario, five years goes by, and the tenant exercises a renewal option subject to a “will negotiate the rental rate later” provision.  Then, the parties negotiate and cannot come up with an agreement.  Is the renewal effective?  If so, at what rate?  If the parties don’t set some sort of procedure (e.g., an appraiser will decide the rate) or some sort of benchmark (e.g., applying CPI inflation rate since the signing off the lease).  The “agree to something later” formulation is the recipe for conflict if not disaster.

In the easement scenario, the seller agrees to provide water, sanitary sewer and electricity easements after the closing on the property being sold, at a location to be decided between the parties. But what if the seller offers access only at a location costly and inconvenient to the buyer?  What if the buyer demands access in a location that makes the remainder of seller’s property undevelopable?  Again, without some procedure (a neutral third party will arbitrate disputes) or benchmark (as close to the east property line as practical), the agreement to provide agreed utility easements at a later date is a hallow promise and an illusory contract.

Now, if the parties trust one another, have a history of getting along, or have economic motivations to cooperate, it may make sense for parties to an agreement to “agree to agree later,” but don’t labor under the illusion that the agreement reached is in itself meaningful, binding or clear.

 

 

 

Navigating turbulent waters: Seven tips on settlement agreements

Author By Christopher P. FinneyPosted on

Ahhh, the peace that comes with conflict resolution!

Whether at the end of a long and raging litigation battle or at the beginning of a minor dispute, the parties have finally entered into settlement discussions.  This is going to be good, right?  Well, even settlement can be fraught with risks, so let’s be sure to get that one last step right.

Here are some valuable tips about settlement discussions:

1. Oral settlements are binding, unless the parties agree that the settlement agreement must be in writing.

Many of the disputes this firm handles are subject to the Statute of Frauds (such as the purchase and sale of real estate, see here).  As a result, many clients are under the misapprehension that a settlement of a dispute about that transaction is likewise subject to the Statute of Frauds (i.e., that the settlement agreement must be in writing and signed by the parties).  This simply is not true.  If the parties to a dispute reach resolution of the dispute orally, that settlement is binding, at least in Ohio and Kentucky.

Of course, oral agreements can be the source of misunderstanding, fraud in and of themselves (“I never agreed to that!”), being incomplete and being not well-thought-through.   Thus, one should be cautious about entering into oral settlement discussions.

However, many times nothing can get a dispute resolved faster and more commodiously than letting the parties — who many times have a long business relationship — hash things out in person, and even without lawyers.  I don’t want to interfere with those positive interactions, so in such circumstances, I recommend a “letter agreement” between the parties that says that the parties are going to engage in such informal conversations, but that nothing is binding on either of them unless and until they reach a final written agreement, signed by both of them.  The letter agreement should further provide that a waiver of the “written agreement” requirement cannot be amended except in writing.

2.  Be careful who you are releasing or from whom you are getting a release.

To get an effective release, the parties identified in a release can be more important than the release language itself. It goes without saying that a release is only binding upon the parties released and only benefits the released parties.  Make sure the parties with the real claims are the ones subject to the form of release.

Further, we usually include in the releasor class and the releasee class “heirs, successors and assigns” of the parties, as well as their “employees, directors, owners, agents, and attorneys.”

Finally on this point, it is important that the releasor(s) acknowledge and represent that they have not assigned their claim in the litigation.

3.  Be careful what you are releasing or what is being released.

As a general rule, when I am representing a defendant who is paying money to settle a claim, I want a full, complete and final release from the plaintiff.  This is so for several reasons, the biggest one being that the plaintiff now knows the “pain threshold” that will get my client to pay money.  If we leave unreleased some of the claims, we have a plaintiff who may well just come back for more.  Further, by paying a plaintiff money, you just help him finance phase two of the litigation.

One exception to this general rule that I consider when representing a defendant, and insist upon when representing a plaintiff, in a dispute relating to the sale of real property, is preserving the warranty covenants that may be contained in a deed for the property.  To me, these are critically important promises from a seller to a buyer, and usually unrelated to other property defects or contract claims.

Additionally, a plaintiff can release claims that do exist as of the time of the settlement, but what about releasing prospective claims?  Typically, it is inappropriate, and may not be possible, to release claims that may arise in the future.

4.  Clear up all ancillary claims and get the litigation dismissed.

In a matter closely related to the “what” of the release, is the issue of clearing up all ancillary disputes in conjunction with a dispute.

Many times a civil claim is attendant with criminal matters, license law complaints, mechanics liens and other impairments of title to real estate, administrative complaints and a host of other sticky issues.  Now, this article is a broad-brush treatment of this issue, and some tricky ethical and other considerations may require very delicately addressing those matters, but when we have the emotional “high” of a settlement, use that Kumbaya moment to put all the bad feelings (and paperwork and proceedings) behind you.

And, of course, make sure the underlying litigation is dismissed concurrent with the settlement.

5. Something I always (almost) forget — the court costs.

So, the defendant is going to pay money and the plaintiff is going to dismiss the lawsuit, but who is going to pay the court costs of the litigation?

In many instances, the court costs are a small number, but in others they can be tens of thousands of dollars.  In any event, it can be the “final insult” or the “icing on the cake” in a settlement.

And in the euphoria and rush of settlement discussions, it is many times the last thing I think of in terms of dispute resolution.  So, I have to remind myself of this component of a settlement.

In my experience, insurance companies routinely pay the court costs as a part of a settlement, but where the litigants have hard feelings or the expenses are significant, it can be a sticking point to have the court costs paid as a part of a settlement.  Thus, the court costs issue should be addressed at the front end of settlement discussions.

6.  Get a mutual release.

Don’t kid yourself that the person writing you a check for settlement may be carefully plotting his retaliation against the plaintiff in another or perhaps even unrelated matter.  “Paybacks are hell,” so they say.

When resolving the dispute for your plaintiff client, ask for a release from the defendant for any claims he may have against the plaintiff as well.  Now, I have had many a defendant say: “if you want a release from me, then pay me some money,” but it is certainly worth seeking such a release.

7.  Indemnities provide unlimited access to your checkbook.

Frequently, defendants paying money to plaintiffs  to settle a claim want the plaintiff to indemnify, defend or “hold harmless” the defendant from claims that may be made by third parties relating to the same events that are subject to the release.

These are not “throw away” provisions or boilerplate.  Rather, they provide open-ended access to a party’s checkbook.  Thus, such provisions could contain the seeds of financial disaster for the plaintiff.  At a minimum, these requests should be carefully considered.  Occasionally, an limited indemnity of “duty to defend” provision may be appropriate, but in most circumstances, requested indemnities are major “red flags” that I reject when representing a plaintiff releasing claims.

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A settlement is a fine end to a dispute, but make sure through these steps that it in fact really the end and really is fine.

Important case impacting public employee unions hits U.S. Supreme Court on Monday

Author By Christopher P. FinneyPosted on

United States Supreme Court watchers are excited about Monday’s oral argument in Friedericks v. California Teacher’s Association, which could stop once and for all compelled payment of union dues to public employee unions.

Ten teachers in California have sued the teacher’s union claiming they were forced to pay money to support positions advanced by the union — in lobbying, in negotiations and otherwise — with which they disagree.

There is so much happening with this case.  Read here the synopsis from the Center for Individual Rights, which organized the suit and today’s story in the New York Times on the topic.

If the High Court is true to form in the timing of releasing decisions in high-profile cases right before their summer recess, expect a decision in this landmark case at the end of May.

Finney Law Firm represents Plaintiffs in Indian Hill Schools property tax class action settlement

Author By Christopher P. FinneyPosted on

Christopher P. Finney has been pleased to serve as one of three attorneys in the case of Fred Sanborn et al v. The Board of Education of the Indian Hill Exempted Village School District, et al..  This case is featured in a thorough analysis in today’s Cincinnati Enquirer.

As the story relates, the case is in part about the tremendous persistence of an 87-year old lead Plaintiff, Fred Sanborn, who doggedly researched and pursued the reversal of an illegal tax exacted by the Indian Hill School District and in part about the creative legal skills of Maurice Thompson and the 1851 Center for Constitutional Law.

The Finney Law Firm entered the case after the Ohio Supreme Court victory was secured, in a second action that ended up before Hamilton County Common Pleas Court Judge Steve Martin to certify the class of taxpayers deserving a refund and to process the refund of the illegal-collected monies from the School District.  Paul DeMarco of Markovitz, Stock and DeMarco provided invaluable assistance in the class action proceeding as well.

The initial question before the Ohio Supreme Court addressed a statute that allows a school district to raise additional revenue without a vote of the people in limited circumstances there the revenue was “clearly required.”  Cynically, the Indian Hill School Board in 2009 attempted to effectuate the tax hike even though they held a $24 million surplus at the time.  Thompson and the 1851 Center argued that either the words in the statute have meaning in restraining the discretion of the School Board, or they do not.  The Supreme Court decided that the statute had real teeth and determined that the School Board’s enactment of the tax was illegal.

The victory will result in a handsome tax refund for current and former property owners in the Indian Hill School District, but also stands as important precedent that clips the wings of Ohio School Boards seeking an un-voted tax increase that is not “clearly required.”  Boards of Education in Ohio are no longer able to ignore the clear language of the statute narrowly limiting the discretion to enact such a tax.

Additionally, Thompson had the prescience six years ago to concurrently commence a second action in Hamilton County Common Pleas Court to certify a class for purposes of fulfilling complex statutory requirements that would secure taxpayer rights to a refund upon the completion of the Supreme Court proceeding.  This was required because Ohio law is fairly hostile to taxpayers seeking retroactive refund of taxes, even those that clearly are illegal.  These dual suits show the incredibly sophisticated legal battlefield, filled with landmines, that Plaintiffs faced.

This saga is really an heroic tale of both dogged citizen activism and enormous legal talent, mostly by Thompson and 1851.  We are proud to have played a small part in this important victory for taxpayers.

What a year it was!

Author By Christopher P. FinneyPosted on

2015 was our second year at the Finney Law Firm, and what a year it was!

Last year — our first year — we largely put the basics of our team in place. This year was the year to deepen our bench and to drive home even better results for clients.  We delivered on that challenge:

  1. Amazingly, we brought home our third “win” from the U.S. Supreme Court.  As is explained more in this blog entry, two of the three wins were won with paper pleadings only; we had only one oral argument.  Further, each of the three victories resulted in the 6th Circuit Court of Appeals decision being reversed or vacated, but the matters were remanded back to the trial court or appellate court for more proceedings.  As a result, we continue to await final disposition of each of the cases.
  2. We won other important victories for clients, including a class action victory against the Indian Hill School District where we obtained (ultimately, by settlement) a $5.5 million refund for taxpayers because of an illegal tax and for the Ohio Republican Party against Cuyahoga County for long-sought public records.
  3. Our title company, Ivy Pointe Title, LLC, closed a record number and dollar volume of residential and commercial transactions.
  4. We broadened and deepened our transactional practice with the addition Dylan Sizemore, an Iraqi war veteran who is practicing in the area of real estate, corporate and estate planning.
  5. We brought a new class action lawsuit for products liability.
  6. We argued cases to preserve our client professional licenses, and handled an increases volume of mediation, arbitration, litigation and appellate cases.
  7. We settled three major civil cases involving abuse of school children.

Thank you — as an employee, as a client, as a vendor — for your continued support for this undertaking.  It has been enormously rewarding for each of us to be a part of it.

Now hiring: Marketing director for rapidly growing title insurance company serving OH, KY and IN

Author By Christopher P. FinneyPosted on

Ivy Pointe Title, LLC is a rapidly-growing residential and commercial title insurance company primarily serving Ohio, Kentucky and Indiana that presently seeks a marketing director who will design, implement and lead marketing efforts to residential and commercial lenders, residential and commercial Realtors, and investors, including:

  • Development and implementation of a comprehensive marketing program.
  • Deft use of internet-based marketing tools, including Constant Contact, our WordPress blog, as well as sophisticated paid and earned social media marketing.
  • Personal outreach to lenders, Realtors and investors.
  • Coordination of personalized contacts by our team of eight attorneys.

Ivy Pointe Title, LLC is run by President Richard Turner, an attorney with 17 years of experience, and is closely affiliated with Finney Law Firm, LLC.  We currently have offices in both Eastgate and Mt. Adams.

Our firm is committed to meeting the demanding requirements of the real estate. lending and title industries, using the latest technology, and tightly conforming with demanding legal constraints upon the industry.  Additions to our team must share our commitment to quality, timely service delivery, transparent communications with transaction participants, and aggressive use of cutting-edge technology to achieve these ends.

The salary for the position will be competitive and will accompanied by a generous performance-based bonus structure.  Our firm offers excellent benefits, including a 401K program.

Requirements to be considered to join our team are:

  • At least three years of experience in the real estate, title or mortgage lending industry;
  • Bachelors degree;
  • A commitment to quality and timely service delivery; and
  • Advanced use of social media and internet marketing and communication tools.

Interested applicants may submit their resume to Anna Ausman at Anna@FinneyLawFirm.Com.  Applicants are advised to review our title company and law firm web sites to become familiar with the services we offer and the quality we deliver.

Chief Justice’s comments on speedier, more efficient litigation are meaningful for litigants in small cases

Author By Christopher P. FinneyPosted on

Let’s face it, the high cost of litigation drives the outcome for most litigation, as most litigation is low-dollar litigation The vast majority of cases for individuals and business do not involve millions of dollars or momentous constitutional issues.

Thus, Chief Justice’s Roberts comments of today urging trial courts and litigants to achieve a swifter and a more efficient route for litigation has application to the majority of cases this firm handles.

Unfortunately, one party or another to litigation frequently has reason to obstruct the case getting to trial and driving up the cost of litigation.  And, candidly, it seems that some attorneys want to “work a case” — i.e., pull fees from it, before working towards a reasonable settlement.

To work through the thicket of discovery and motions, it frequently falls to the trial judge to move a case along.  Chief Justice Roberts today, among other things, urged trial judges, to do just that.

For our clients, plaintiffs and defendants, that will serve the cause of justice.

 

Hamilton County Registered Land litigation update

Author By Christopher P. FinneyPosted on

As previously reported in this blog, this firm has been honored to be selected as counsel to a group of Registered Land property owners to save that land registration system in Hamilton County, Ohio.

In the fall of 2014, the Hamilton County Commission voted 2-1 to abolish the Torrens land registration system.  Hamilton County has enjoyed the highest rate of land registration in the State.  Our clients then filed suit to block the abolition, in part based upon significant procedural errors on the part of the Hamilton County Commission in that abolition action.

During the pendency of that lawsuit, we successfully sought and obtained an injunction against the abolition of the system, requiring the Hamilton County Recorder to continue both “regular” land recording and the Torrens indexing.

In late October Judge Charles Kubicki dismissed the lawsuit, and then our plaintiff clients sought a “stay” of that decision — and a continuation of the Torrens land registration system pending appeal — first from Judge Kubicki and then from the 1st District Court of Appeals.  Both of those motions were denied.

Thus, at present, the Hamilton County Recorder has ceased some aspects of Torrens Land Registration.  We will report more fully in an update which procedures remain.

However, our appeal remains pending, and we have filed a motion with the Court of Appeals to expedite the disposition of the appeal, as the difficulty in restoring the Registered Land System may be compounded as time passes and hundreds if not thousands of documents require corrective indexing.

We’ll keep our blog readers advised as the appeal progresses.

 

Fall 2015 Ohio legislative update

Author By Bradley M. GibsonPosted on

Listed below are legislative bills currently pending in the 131st Ohio General Assembly. If you would like to view full text of each individual legislation, please click on the links below.

S.B.85 – Property-Tax Complaints

Sponsored by Senator Bill Coley (R)

Introduced to the Senate on February 23, 2015, Senate Bill 85 addresses property tax complaints and is currently pending in the Ways and Means Committee. The Bill would amend sections 307.699, 3735.67, 5715.19, 5715.27, and 5717.01 of the Revised Code to only permit property tax complaints to be initiated by the property owner, the property owner’s spouse or representative, or the county recorder. Right now, the current law allows property owners, the property owner’s spouse or representative, the county recorder, a real estate broker, the board of county commissioners, the prosecuting attorney or treasurer of the county, the board of township trustees, the board of education, or the mayor to file a property tax complaint.

S.B.180 – Anti Discrimination-Employment

Sponsored by Senator Joe Uecker (R)

On June 10, 2015, Senate Bill 180 was introduced to the Senate and is now currently pending in the Senate Civil Justice Committee. Senate Bill 180 would make it an unlawful discriminatory practice for an employer to fire an employee without just cause, refuse to hire a potential employee, or to discriminate against someone regarding matters related to employment just because that person exercised a constitutional right within a house or car not owned by their employer. The Bill would also allow a person to file a charge with the Civil Right Commission if they find that another person has engaged in an unlawful discriminatory practice. The Civil Rights Commission would then investigate the unlawful discriminatory practice.

S.B.201 – Nuisance-Vacant Property

Sponsored by Senator Jim Hughes (R)

Under current law, a “nuisance” property is defined as a real property where prostitution, the illegal manufacturing or selling of alcohol, and/or the production of indecent films takes place. Senate Bill 201, introduced to the Senate on August 10, 2015, would expand the definition of “nuisance property” to include any real property where an offence of violence has occurred or is occurring. Real Property also includes vacant land. For purposes of this Bill, an offence of violence has many definitions, some of which are: robbery, kidnapping, murder, assault, child abuse, riots, burglary, domestic violence, arson, and human trafficking. S.B. 201 would also continue to allow the Attorney General to call an abatement proceeding on the nuisance property, which could eventually result in the property being deemed unavailable for use for one year. As of October 14, 2015, S.B. 201 is pending in the Civil Justice Committee.

H.B.134 – Foreclosure-Vacant Properties

Sponsored by Representative Cheryl Grossman (R) and Representative Michael Curtin (D)

House Bill 134, which addresses a number of issues regarding judicial foreclosure actions, is currently pending in the House Judiciary Committee. First, if a residential property appears to be vacant or abandoned, the Bill would allow the mortgage holder to bring a summary foreclosure action against the property. It would also modify the judicial sale procedure by requiring the sheriff to record the deed of a foreclosed property within a certain time period. If the deed is not recorded within a certain time period, the property will be transferred to the purchaser by the recording of the order of confirmation of sale. In regards to unoccupied property, the Bill would allow a municipal corporation to seek an order of remediation against the owner of the property. Lastly, if H.B.134 passes, it would place additional duties on the clerk of common pleas court pertaining to the notification and service of parties involved in a foreclosure action.

H.B.149 – Attorney’s Fees- Actual Damages

Sponsored by Representative Jonathan Dever (R) and Representative John Patterson (D)

Introduced to the House on April 13, 2015 and currently pending in the House Financial Institutions and HUD Committee, House Bill 149 relates to damages and attorney’s fees in housing discrimination cases. The Ohio Fair Housing Law currently prohibits discrimination when it comes to purchasing, selling, or renting a house. Under this Bill, if the Civil Right Commission finds that someone is engaging in unlawful housing discrimination, the Commission is permitted to require that person to pay actual damages and attorney’s fees. The current law requires the assessment of actual damages and attorney’s fees and permits the assessment of punitive damages in regards to housing discrimination claims.

H.B.226 – Condominium Liens

Sponsored by Representative John Rogers (D)

On May 21, 2015, House Bill 226 was introduced to the House and is now pending in the House Commerce and Labor Committee. H.B. 226 would provide that a lien filed by a condominium association against the owner’s interest in the unit has priority over other liens and encumbrances that were previously recorded, with the exception of political subdivision assessments and real estate tax liens. It would also provide that the condominium lien is a continuing lien and is subject to automatic adjustments for additional fees, costs, assessments and unpaid interest.

H.B.281 – Income Tax Deduction-Higher Education

Sponsored by Representative John M. Rogers (D)

Introduced to the House on July 7, 2015 and currently pending in the House Ways and Means Committee, House Bill 281 would allow recent college graduates to take a personal income tax deduction for specific out-of-pocket higher education expenses. Out-of-pocket higher education expenses would consist of: school supplies, books, tuition, fees, any type of equipment that the student would use in or for class, and room and board expenses.

H.B.330 – Equal Pay Certificate

Sponsored by Stephanie Howse (D) and Representative Kathleen Clyde (D)

House Bill 330 would amend multiple sections of the Revised Code regarding contractors and individuals submitting bids or proposals for state contracts and business entities applying for a grant. As introduce to the House on September 14, 2015, H.B. 330 would require contractors, individuals, and business entities to do the following: prohibit an employer from retaliating against an employee who discusses their wage rate or salary with another employee, eliminate sex-based wage discrepancies and obtain an equal pay certificate. This Bill is currently pending in the House State Government Committee.

Student discipline in the smart phone age

Author By Bradley M. GibsonPosted on

 

School administrators have the unenviable responsibilities of both educating our youth and keeping them safe.  As school violence continues to make national headlines administrators are increasingly wary of “off-campus student speech” – think social media postings – made by their students.  How do we balance a school’s need to maintain discipline in the school-setting, with the student’s first amendment rights to free speech?  Do we as a society allow schools to take a more authoritarian approach to disciplining our youth given the spate of violence, or do student’s free speech rights trump the school’s ability to discipline students for conduct that occurs away from the school yard?

The United States Supreme Court established the standard for “on-campus” speech regulation in 1969 in Tinker v. Des Moines.  In that decision, the Supreme Court decided that students who wore black armbands to school in protest of the United States’ involvement in the Vietnam War did not materially or substantially interfere with the operation of the schools or collide with the rights of others.  The Court issued the now oft-quoted refrain that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Yet, at the same time, the Court established that school administrators may restrict student speech that poses a risk of substantial disruption with the work or discipline of the school.

Following Tinker, the Supreme Court continued to refine First Amendment jurisprudence in the public school context, finding that: (1) schools can restrict vulgar and lewd speech (Bethel School District No. 403 v. Fraser); (2) schools can restrict student speech that appears to be sponsored by the school (Hazelwood School District v. Kuhlmeier); (3) schools can restrict student speech promoting illegal drug use (Morse v. Frederick).

The Supreme Court could not have imagined the development of social media and its impact on the student speech when it decided in Tinker in 1969.  As social media continues to expand avenues of communication and expression for our youth, the federal district courts continue to tackle speech issues without further guidance from the Supreme Court.   I first became interested in this issue six years ago in law school while researching student speech issues for a law review article.  Ultimately I published an article that examined off-campus speech in the context of the second circuit’s decision in Doninger v. Niehoff.  In that article, I argued that the Supreme Court’s standard for on-campus speech regulation enunciated in Tinker is workable in the context of off-campus speech. S ix years later the Supreme Court has yet to weigh in on the issue.

The Fifth Circuit Court of Appeals recently addressed the issue in the Bell v. Itawamba County School Board.  In Bell, a high school student and aspiring rapper wrote and recorded a song at a studio unaffiliated with the school and posted the song on his Facebook page and on YouTube using his personal computer.  The song included criticism of and “threatening language against two high school teachers/coaches” who allegedly sexually harassed female students.  In response, the School board suspended Bell and transferred him to an alternative school.  Bell subsequently filed suit against the school arguing that this disciplinary action violated his First Amendment right to free speech.

The District Court granted summary judgment in favor of the school, finding that the school officials acted reasonably.   On appeal, a panel for the appellate court reversed, finding in favor of Bell.  The school then petitioned for the case to be heard by the appellate court en banc, meaning that the entire bench (all of the judges of the court) would hear the case.  Its petition was granted and the appellate court reinstated summary judgment in favor of the school. In doing so, the Fifth Circuit held that the school did not violate Bell’s First Amendment rights.

The Court examined Bell’s case in the context of Tinker and its progeny.  After reviewing these cases, the Court rejected Bell’s arguments that Tinker does not apply to off-campus speech and that, even if it does, Bell’s conduct did not satisfy Tinker’s substantial disruption test.  Instead, the Court held that the school acted appropriately in disciplining Bell because “a school official reasonably could find Bell’s rap recording threatened, harassed, and intimated the two teachers…and a substantial disruption reasonably could have been forecast.”

The Court reasoned that “violence forecast by a student against a teacher does reach the level of the …exceptions necessitating divergence from Tinker’s general rule” and that, due to the advent of new technology such as the internet, smartphones, and digital social media, “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.”  The appellate court found that the school’s interest in being able to act quickly and intervene before speech leads to violence outweighed Bell’s interest in free speech.  As a result, the Fifth Circuit determined that Tinker’s substantial disruption test applies when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimate a teacher, even when the speech originated off campus.

The Fifth Circuit’s decision illuminates the struggle our federal courts have had in developing a consistent approach to these issues, evidenced by the four dissenting opinions it elicited.  One dissent criticized the majority’s recognition of the school’s right to discipline a student whistle-blower.  Another dissent explained that off-campus, online student speech is a poor fit for any of the First Amendment doctrines and expressed hope that the Supreme Court will soon give the lower courts guidance on how to resolve these cases. The third dissent essentially agreed with the panel majority’s opinion and felt that the en banc majority unnecessarily expanded Tinker to apply in this case.  Finally, the last dissent generally posited that Tinker did not apply to off-campus speech and that, instead, he would apply a modified Tinker standard to allow for the problems current technology poses.  Under even a modified standard, though, the dissenter opined that the school’s discipline of Bell would fail.

As we see in Bell, the courts continue to wrestle with whether and how to apply Tinker and its progeny to off-campus student speech. Ever-increasing technology poses additional questions that the courts will continue to struggle with until the Supreme Court weights in on the issue.

My guess is that Supreme Court will address the question sooner the later. Whether the Tinker substantial disruption test will be adopted for off-campus speech, or some hybrid test is created, remains to be seen. In my mind, although the Tinker Court never imagined the ease of communication in the smart phone era, its test remains a viable and important tool for school administrators to curtail speech when it poses a foreseeable risk of substantial disruption to the school environment.

 

 

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