By Courtney E. Dunn and Kristin Hopkins
The sophomore year of high school has a lot riding on it. So when B.L., a student at Mahanoy Area High School (MAHS), did not make the varsity cheer team after already serving her time on the junior varsity team as a freshman, she took it to Snapchat…and did not quite exhibit the school spirit MAHS was expecting of the cheer squad. Presumably, while venting to some girlfriends about her stagnant cheer career, not to mention the fact that incoming freshmen made the varsity team ahead of her, B.L. posted a Snapchat story while at a local store that depicted a photo of herself and her friend with their middle fingers up in the air. She added a caption which read “Fuck school fuck softball fuck cheer fuck everything.” In case that did not accurately depict how she was feeling to her 250 Snapchat friends, B.L. added a follow up story, which further explained “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else?”
Screenshots of these stories made their way to both of MAHS’s cheerleading coaches after cheerleaders and non-cheerleaders alike expressed their concern. Prior to joining the cheer team, B.L. had acknowledged the school rules, which required team members to “have respect for [their] school, coaches, . . . [and] other cheerleaders”; avoid “foul language and inappropriate gestures”; and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches. . . on the internet.” She also agreed to a school rule requiring student athletes to “conduct themselves in such a way that the image of the Mahanoy School District would not be tarnished in any manner.” The coaches decided that B.L.’s Snapchat stories violated both team and school rules and, as a result, removed B.L. from the JV team, a decision which B.L. and her parents unsuccessfully appealed to the athletic director, school principal, district superintendent, and school board.
After school authorities offered nothing more than the opportunity for B.L. to try out for the team again as a junior, B.L. sued the Mahanoy Area School District in the United States District Court for the Middle District of Pennsylvania, advancing the following three claims under 42 U.S.C. Section 1983: that her suspension from the team violated the First Amendment; that the school and team rules she was said to have broken are overbroad and viewpoint discriminatory; and that those rules are unconstitutionally vague.
First Amendment Rights Off the Field
The Third Circuit held that B.L.’s speech was entitled to First Amendment protection. In coming to that conclusion, the Court turned to Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) which held that student speech extend to all aspects of “the process of attending school” including “in the cafeteria, or on the playing field, or on the campus during authorized hours.” In its reliance on Tinker, the Third Circuit held that B.L.’s Snap story was “off-campus” speech. Just because B.L. posted her Snapchat off school property, however, does not automatically qualify it as off-campus speech. Rather, the Court relied on the decisions set forth in J.S. ex rel. Snyder v. Blue Mountain Sch. Dist. 650 F.3d 915, 926 (3d Cir. 2011) and Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 216 (3d Cir. 2011) (en banc). The Court ultimately held that, while B.L.’s snaps may have mentioned the school and eventually made its way to students and MAHS staff, that is not enough to push the Snaps into the category of “on-campus speech”. The speech at issue did not take place at a “school-sponsored” forum, nor did it take place in the context that “bear[s] the imprimatur of the school.” MAHS, of course, does not own or operate Snapchat. The Court also considered the fact that B.L. created and posted her Snapchat story over the weekend, without school resources. Based upon these considerations and principles gathered from an array of factually similar cases, B.L.’s Snapchat is considered “off-campus” speech.
Defeating the District
The District advanced three reasons defending its decision to punish B.L. First, under Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the School District asserted it could ban speech determined to be “vulgar, lewd, obscene or plainly offensive” to “enforce socially responsible behavior,” However, the court explained that Fraser could not apply to off-campus speech, as Fraser only applies to vulgar speech “in school.”
Next, the School District advanced that under Tinker, B.L.’s Snapchat story was likely to disrupt the cheerleading program. However, under Tinker, the standard is a disruption of the school environment. The District’s arguments were merely focused on the disruption of the cheerleading environment only. Nevertheless, the court had not answered the question regarding Tinker’s application when there was a disruption of a school-sponsored extracurricular activity that occurred off-campus.
While the court wanted to shy away from answering the question of whether Tinker could apply to off campus speech, the court looked at other courts’ approaches for an answer. A Second Circuit court applied Tinker in instances “where it was reasonably foreseeable that a student’s off campus speech would reach the school environment.” In that case, a student created an instant messaging icon showing a pistol firing at a person’s head, spewing blood, with language indicating he wanted to kill one of his teachers. The court held that the violence inherent in that speech met the substantial disruption standard. A Fourth Circuit court held that Tinker could apply to off-campus speech when the speech has a “sufficient ‘nexus’ to the school’s “pedagogical interests” holding student harassment and off-campus sexual harassment were found to be not protected. And finally, other circuits applied Tinker where the speech was directed at the school community, such as threats of intimidation.
In its analysis, the court found problems with all of those approaches, as the rulings in the above cases were quite narrow and provided the schools more authority when applied broadly. The court believed their approach, in keeping Tinker narrow, keeps the focus on disruption within the school environment — that includes in the digital age. The court stated that they cannot restrict speech on the internet just because the administration finds it “inappropriate, uncouth, or provocative.” The holding that Tinker does not apply to off-campus speech provides a clear delineation for students to understand their freedoms and protections.
The District’s final arguments regarding vulgar language, B.L.’s speech not expressing an opinion, and subjecting minors to profane speech did not hold weight with the court. It still determined B.L.’s speech was protected under the First Amendment.
In addition, B.L. did not waive her First Amendment rights when she joined the team. Her Snapchat did not violate the School District’s rule that prohibit foul language “at games, fundraisers, and other events.” As she sent this Snapchat over the weekend, unconnected to any school event, and before the cheerleading season started, she could not have waived her rights. In addition, her Snapchat did not violate any of the other rules the School District had in place.
Conclusion
Sophomore year turned out quite differently for B.L., in more ways than one. While she may not have secured her place at the top of the pyramid, she solidified that she, and other students, have protections to their off-campus speech.
Courtney Dunn is an attorney barred in New York and New Jersey. She has been with Segal McCambridge Singer & Mahoney for almost one year, where she is a member of the Sports, Recreation, and Entertainment Group. Before joining SMSM, Courtney completed a clerkship with The Honorable Judge Craig L. Wellerson in Ocean County, New Jersey.
Kristin Hopkins is an Associate Attorney in the New York office of Segal McCambridge Singer & Mahoney. She is barred in New York and New Jersey and a member of the firm’s Sports, Recreation, and Entertainment Group.
