Case Update: Vulgarity, a Snap and no one Cheered

In the age of social media, can the right to free speech protect a cheerleader whose off-campus ‘snap’ smeared her squad? 

In an update to our October 2017 article on B.L. v. Mahanoy Area School District case, in which a school barred a student from the cheerleading squad as punishment for language she used outside of school, the caution to Pennsylvania school districts remains the same.  School officials must utilize the same framework in analyzing student speech where the punishment involves a suspension from an extracurricular activity as opposed to suspension from school.

After the Middle District Court of Pennsylvania granted specific instruction to the school district that demanded the student return to the cheer squad, the case continued. After a period of gathering information, both the school district and the cheerleader asked the Court to evaluate the case without a trial. The Middle District Court ruled in the student’s favor, finding no distinction between excluding a student from an extracurricular activity and suspending a student from class. The Middle District Court refused to consider the difference between a school suspension and participation in an extracurricular activity

The Mahanoy Area School District issued a statement “The School District is disappointed in the decision but has not yet made a decision whether to appeal.”  As an explanation of the school district’s position it offered “…the School Board believed it was its obligation to support the coaches’ decision to remove B.L. from the cheerleading team for not following the cheerleading rules.  B.L. and parent agreed to these rules before joining the team. The school board firmly believes that extracurricular activities are not a right.  They are a privilege and coaches have the authority to make rules for their activity. School boards and administration need to support their coaches when rules are broken.”

The United States Supreme Court has recognized four circumstances in which schools may regulate student speech.  First, a school may restrict speech if it “materially and substantially disrupt[s] the work and discipline of the school.” Second, a school may restrict vulgar or offensive speech made on campus in furtherance of its mission to “inculcate the habits and manner of civility” and to “teach students the boundaries of socially inappropriate behavior.” Third, “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” such as a school newspaper, may be regulated “so long as [the school’s] actions are reasonably related to legitimate pedagogical concerns.”  Finally, schools may punish speech advocating illegal drug use or the threat of physical safety of students.   

It is clear students cannot be disciplined for off-campus conduct absent limited exceptions requiring a nexus to the school and substantial disruption to the school environment. The Middle District ruled the Mahanoy Area School District violated the First Amendment rights of B.L. who was dismissed from the cheerleading squad for posting a “Snap” to the social media platform Snapchat, using expletives sounding off against the cheer squad.   Deciding factors in this case were that the student posted the Snap while off-campus, during non-school hours, and did not identify herself or wear clothing to identify herself as a Mahanoy cheerleader.  In a factually distinct 2018 federal case in Utah, a student posting an expletive ridden video of herself wearing attire connecting her to the school district was denied her request for reinstatement to the cheer squad for alleged violations of her right to free speech.   Rulings in these cases are fact-intensive and can turn on slight differences in the factual situation presented. On April 12, 2019 the Mahanoy Area School District filed an appeal to the 3rd U.S. Circuit Court of Appeals in Philadelphia.

If your school district is facing issues related to this article or the free speech rights of students, contact the Education Law Team at [email protected].