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Bell v. Smith

Supreme Court of Alabama

March 22, 2019

Ella Bell
Cameron Smith et al.

          Appeal from Montgomery Circuit Court (CV-17-901624)

          MENDHEIM, Justice.

         Ella Bell, a member of the Alabama State Board of Education ("ASBE"), appeals from the Montgomery Circuit Court's dismissal of her complaint asserting claims of defamation, invasion of privacy, the tort of outrage, negligence and wantonness, and conspiracy against Cameron Smith, Advance Local Media, LLC ("ALM"), and the R Street Institute ("R Street"). We affirm.

         I. Facts

         On June 21, 2017, Bell attended a special-called meeting of the ASBE concerning elementary- and secondary-education matters. Among other matters, the ASBE decided during the meeting not to renew the Alabama State Department of Education's contract with ACT Spire Solutions, which provided ACT Spire Assessments for the purpose of tracking academic progress of Alabama's public-school students in kindergarten through 12th grade. In the course of the discussion between ASBE members about that contract, Bell made some comments regarding special-education students and their effect on the aggregate test scores of public-school students throughout the state.

         On August 24, 2017, published an article written by Cameron Smith in which he addressed some of Bell's comments in the June 21, 2017, ASBE meeting. The headline of the article stated: "Alabama School Board Member Considers Institutionalization for Special Ed Students." Because the article is central to Bell's claims and to the defendants' motion to dismiss, we quote the article in its entirety.

"Alabama State Board of Education (SBOE) member Ella Bell wants to know why we can't force special needs children into an institution in an effort to help improve test scores in Alabama's public schools.
"That might be a reasonable question ... from someone who hasn't served on the SBOE for more than a decade and a half.
"Under federal law, students with disabilities should have the opportunity to be educated in the same environment as their peers to the greatest extent appropriate. It's a practice commonly referred to as 'least restrictive environment' (LRE).
"'Is it against the law for us to establish perhaps an academy on special education or something on that order,' asked Bell, 'so that our scores that already are not that good would not be further cut down by special-ed's test scores involved?'
"When Bell's colleagues mentioned LRE, she didn't seem to understand. 'It doesn't matter about that. You can make it the least restrictive environment,' she said, 'I'm trying to see if you can move them out.'
"When a SBOE member doesn't seem to have a real grasp for such an important aspect of public education, we have a problem. I looked up the Alabama State Department of Education's comprehensive FAQ on the issue in about two seconds.
"If Bell had bothered to be even a little bit curious, she would have discovered the answers including how individualized education plans (IEP) for students approach assessments. She clearly didn't bother to look for answers before attending the meeting.
"State Superintendent Michael Sentance[1] noted that even students with challenges similar to theoretical physicist Stephen Hawking would be considered 'special needs.' Bell responded, 'I'm just saying those who have special needs are truly not folks like [Hawking].'
"She even said, 'It's almost not fair for LAMP (Loveless Academic Magnet Program in Montgomery) and them not to have special-ed folk to bring them down.' "Bell doesn't seem to have a clue about Alabama's public education system for special needs students, but she is pretty concerned that those students 'bring down' the rest.
"Alabama has a process for building out IEPs consistent with LRE requirements. The underlying idea is that our students are better off in the classroom together. The idea that a SBOE member would even seriously ask the question about returning to a practice of institutionalization demonstrates a tragic lack of knowledge and thoughtfulness.
"The way we balance the needs of students isn't easy, but it's a testament about the kind of state we want to be. We've decided to include people who face challenges that many of us might not. That's the right answer. We have a tragic history of exclusion in Alabama that we can't allow to make a comeback.
"Either we don't have enough information about our SBOE members to hold them accountable, or we simply don't care about the people shaping our state's education environment. Bell's jarring perspectives are right in front of us on video. We just need to decide whether Alabama's future matters enough for us to do anything about it."

         At the conclusion of the article, included the following tagline: "Cameron Smith is a regular columnist for and vice president for the R Street Institute, a think tank in Washington, D.C." Immediately after the tagline, included the following statement: "Ella Bell's contact information may be found on the [ASBE] website" and contained an embedded link to the Web site of the ASBE. Following that statement, embedded a video of the discussion by ASBE members, which included Bell's comments that Smith addressed in the article. The "desktop" version of the article had a sidebar on the right side of the page that listed pictures and names of other columnists: John Archibald, Kyle Whitmire, and Roy S. Johnson. Bell asserts that the version of the article accessible on smart phones did not contain this sidebar.

         According to Smith and ALM, the version of the article originally posted on contained a caption above the headline that stated: "Alabama Opinion." Bell asserts that the caption was not posted with the original version of the article and that it was added at a later date.

         R Street republished the article on its Web site on the same date as the ...

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