Vulgarity, a Snap and no one Cheered

In the case of B.L. v. Mahanoy Area School District, a school district’s punishment leveled against a cheerleader for engaging in profanity on a Snap did not withstand legal challenge.  Simply put, the ability of a school to punish lewd or profane speech disappears once a student exits school grounds.

A high school cheerleader was barred from the squad as punishment for her out-of-school speech.  The district had established a code for cheerleaders which required the members of the squad to “respect their school, coaches, teachers, and other cheerleaders and teams…There will be no toleration of any negative information regarding cheerleading, cheerleaders or coaches on the internet.”  The cheerleader posted a Snap featuring a photo of her and a friend holding up their middle fingers with the text, “f*** school f*** softball f*** cheer f*** everything” superimposed on the image.  The girls in the image were not wearing their uniforms and did not share the name of the school district.  The school district invoked the above cheer code and dismissed B.L. from the squad.  At the hearing, school officials testified that the discipline was imposed because of the student’s use of profanity.

A complaint was filed in the Middle District Court of Pennsylvania along with a Motion for a Preliminary Injunction, the court in granting the injunction determined that the plaintiff cheerleader was likely to succeed on the merits of her First Amendment claim.  The court rejected the school district’s assertion that this was not a “First Amendment case” and further rejected the argument that profane off-campus conduct directed at the school should be considered on-campus speech.

School officials cannot discipline students for profane, off-campus speech.  The Fraser profanity exception first announced by the United State Supreme Court, only applies to on-campus speech.    School officials may only limit speech that is 1) “vulgar, lewd, profane, plainly offensive” or 2) “is reasonably expected to substantially disrupt the school.”

A student’s rights to free speech do not embrace merely the classroom hours.  In this case, the school district believed that since the suspension only involved an extracurricular activity, it was free to discipline.  School officials must apply the same framework for analyzing student speech where the punishment involves a suspension from an extracurricular activity as opposed to suspension from school. If your district is facing issues related to this article, contact the Education Law Team at education@mbm-law.net.

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