By Gary Chester, Senior Writer
UCLA’s John Wooden may have been the greatest college coach ever because he won championships and taught his players solid values. The second accomplishment is all too rare in an era of sore losers and sore winners.
In 2019, Bronson McClelland was the captain and the quarterback for Katy High School (KHS) in Texas. After leading his team to a 35-30 victory over crosstown rival Tompkins High, McClelland and other students gathered at a local burger joint to savor the win – and to taunt students from Tompkins.
The end result was McClelland creating a racist video that went viral and got him suspended. McClelland challenged the suspension in a lawsuit in which the U.S Court of Appeals for the Fifth Circuit considered the unsettled issue of the rights of students to criticize their schools while they are off campus. (McClelland v. Katy Independent School District, 2023 U.S. App. LEXIS 7716 (March 31, 2023)).
The QB Posts an Ugly Video – and is Sacked
While eating at a local Whataburger restaurant, McClelland, Jose Hernandez (a student at Tompkins High School but not on the football team), and other students taunted each other in person and digitally via the Snapchat social media platform. While outside the restaurant, McClelland recorded and sent a three-second video to Hernandez via Snapchat wherein McClelland stated, “[We’ll] put your mothercking ass in the hospital, ngga’. What the fck.”
Hernandez recorded the video on his phone and sent it to several friends, including Tunmise Adeleye, a Black student who was a football player at Tompkins. Adeleye posted the video to his personal Twitter page, making it allegedly appear that he received it directly from McClelland. The video quickly circulated and began attracting media attention.
The next day, McClelland and his parents met with Rick Hull, KHS’s Principal, and Gary Joseph, the KHS football coach, who suspended him for two games and stripped him of his captain position. McClelland promptly posted an apology on his personal Twitter account, explaining that he had been suspended for two games and stripped of his captain position.
Within hours of this post, Hull and Joseph contacted McClelland’s father and demanded that McClelland remove the apology because they did not want it to appear that the Katy Independent School District (KISD) had rushed its investigation. KISD released its own statement, explaining that “a KHS student-athlete posted a video of himself on social media in which he used racially charged language to taunt a student-athlete on the opposing team” and that he will face disciplinary consequences.
McClelland alleged that KISD promoted the false narrative that he was a racist because they knew he had not sent the video directly to Adeleye. McClelland also alleged that Joseph had tolerated the use of the N-word, but the coach renounced this policy at a team meeting a few days after the incident.
For almost a year, McClelland and KISD corresponded to try to resolve the fallout from the allegedly false statement. McClelland informed the district that he would pursue legal remedies if the matter remained unresolved after September 18, 2020. On September 17, 2020, a canine unit with the local police department identified McClelland’s car in an allegedly random search of the KHS parking lot. Police officer Stephanie Fulgencio found .04 grams of a leafy green substance on the rear floor mat of the car, and Assistant Principal Ashley Darnell charged McClelland with possession of marijuana under the Texas Health & Safety Code – even though the substance had not been tested.
Three days later, Fulgencio confirmed that the substance was marijuana. McClelland was suspended for three days and placed in the Disciplinary Alternative Education Program (DAEP) for 45 days. McClelland alleged that the authorities had failed to test the marijuana to discover its potency, which is required to establish that it exceeded the legal threshold for marijuana.
The QB Goes to Court
After a failed attempt to transfer to and play for another high school, McClelland sued Forensic Laboratory, KHS, the KISD Police Department, the KISD Board of Trustees, and several individual employees. He alleged several violations of 42 U.S.C. Sec. 1983, including deprivation of First Amendment and due process rights. The action was filed in state court, but was removed to the Southern District of Texas.
The defendants filed motions to dismiss under Rule 12(b), which the trial court granted on the basis of qualified immunity. McClelland subsequently appealed to the Fifth Circuit.
On appeal, McClelland contended that the district court erred by dismissing his free-speech related claims under Sec. 1983 because (1) Hull’s regulation of his off-campus speech was unconstitutional, (2) his free-speech rights were clearly established, and (3) he sufficiently pleaded a connection between the policymaker (the KISD Board) and the allegedly unconstitutional policy as required by Monell v. Dept. of Social Services, 436 U.S. 658 (1978).
In the Fifth Circuit’s opinion, Judge Jacques L. Wiener, Jr. wrote that a Sec. 1983 plaintiff must show a violation of the Constitution or of federal law, and then show that the violation was committed by one acting under color of state law. The decision recognized that qualified immunity protects government officials from civil liability only when they could reasonably believe their actions were legal. To overcome this defense, a plaintiff must demonstrate that the official violated a clearly established statutory or constitutional right.
Since the U.S. Supreme Court has never set forth a bright-line rule for regulating off-campus speech, much of Judge Wiener’s analysis considered whether the school principal, Hunt, could have reasonably known that he was infringing on an established constitutional right.
The court’s analysis started with Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), a seminal free speech case in which the Court protected the right of students who wore black armbands to class in protest of the Vietnam War. The Court famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court also recognized the right may be limited where a student’s speech substantially disrupts school activities.
The Fifth Circuit considered several off-campus speech cases, including Mahanoy Area School District v. B.L. ex rel Levy, 141 S. Ct. 2038 (2021), in which the Court held that a disgruntled cheerleader’s off-campus Snapchat posts, which stated “Fck school fck softball fck cheer fck everything,” were constitutionally-protected speech. But the decision left “for future cases to decide” the parameters of protected off-campus speech.
The QB is Sacked (Again)
While courts do not require a case directly on point to establish qualified immunity, Judge Wiener observed that school officials are entitled to qualified immunity unless “existing precedent…placed the statutory or constitutional question beyond debate.”
The Fifth Circuit ruled that the district court was correct in finding that Hull was entitled to qualified immunity because neither the Supreme Court nor the Fifth Circuit had clearly defined the limits of off-campus speech. The KHS Principal was not placed on notice that disciplining McClelland for his off-campus speech was unconstitutional.
The court also found that McClelland had abandoned his First Amendment retaliation and compelled speech claims because they were never briefed. Similarly, the court rejected McClelland’s claim that the KISD Board is vicariously liable for the acts of its employees because he did not allege that the Board promulgated a policy that caused injury, as Monell v. Dept. of Social Services requires.
The due process claim was also dismissed because the law recognizes participation in interscholastic sports as “a mere expectation” rather than a constitutionally protected right.
In this pervasive social media era, parents need to caution students who participate in scholastic sports and other extracurricular activities that these are privileges and not rights, and that when they post highly offensive statements their free speech rights may only go so far.