Benching a Student-Athlete for Violating the School’s Code of Conduct

A Review of the First Amendment Decisions Issued Since the Supreme Court’s “Cheerleader Case” Examining Public Schools’ Disciplinary Authority Over Off-Campus Student Speech

In our July newsletter, we reported on the Mahanoy Area School District v. B.L., 141 S. Ct. 2038 (2021), decision issued by the U.S. Supreme Court in June in which the Court examined the boundaries of a public school’s authority to regulate student speech that occurs off-campus. The Court held that a public school violated a student-athlete’s First Amendment speech rights when it suspended her from the cheerleading squad for one year based on social media posts created off-campus containing profanity related to the cheerleading program. Importantly, the Court held that public schools generally have authority to regulate student speech that occurs off-campus through social media where it causes a substantial disruption, threatens harm to a member of the school community or constitutes severe bullying or harassment of particular individuals. However, public schools – which are “nurseries of democracy”- must protect unpopular ideas and cannot discipline a student for “pure speech” that occurs off-campus, even though others may find the speech offensive or vulgar.

Since the high Court declined to create a uniform rule regarding a public school’s jurisdiction to regulate off-campus speech, many schools have questioned how the Mahanoy decision affects their ability to enforce codes of conduct applicable to all students and those engaged in extracurricular activities, such as team sports. The answer to that question has not been resolved by the federal or state courts in New York yet. The few courts that have addressed a public school’s authority following Mahanoy to discipline a student athlete based on the student’s off-campus speech provide guidance regarding the scope of public schools’ continued authority to regulate off-campus speech.

A School May Discipline a Student for Threats Aimed at Teachers and Other Students

The Supreme Court recognized that a school’s regulatory interests remain significant in some behavior that occurs off-campus, including where a student engages in “serious or severe bullying” or makes threats against teachers or other students. Therefore, student-athletes have been disciplined for violating a school’s code of conduct where the student’s speech constitutes a true threat.

Two federal district courts have addressed this issue in the context of social media posts made by student-athletes threating other students. For example, in McClelland v. Katy Independent School Dist., 2021 WL 5055053, 21-CV-00520 (S.D. Tex. Nov. 1, 2021), a District disciplined a former quarterback and team captain of the school’s high-performing football team for a social media incident and separately marijuana possession. The off-campus speech incident occurred at a local burger restaurant following a football game when, in response to taunts by the rival school’s students to his schoolmates, the student-athlete sent a Snapchat video from his friend’s phone to a student at the rival school, stating, “[We’ll] put your motherf***ing a** in the hospital, n*gga’. What the f***.”The student, who was not African-American or a member of the rival football team, recorded the video and sent it to several of his friends, including an African-American football player, which gave the appearance the student-athlete sent the video directly to the African-American football player on the rival team. While deciding the issue on other grounds, the court dismissed the student-athlete’s claim that the District’s disciplinary action violated his First Amendment rights. The court acknowledged the “substantial disruption” continues to apply following Mahanoy and that certain circumstances may preclude First Amendment protection of even off-campus speech.

Similarly, in A.F. by and through Fultz v. Ambridge Area School Dist., 2021 WL 3855900, 21-CV-1051 (W.D. Pa. Aug. 27, 2021), a District removed a student-athlete from its high school football team based on a series of social media posts the student directed at another player on a Snapchat group comprised of fellow football players and coaches. After being confronted about not attending practice, the student made several threats to another player, including: to “show up at practice to beat yo ass b****,” to “grab a f***ing bottle and bash that s*** on your face till I see your brain b****,” to “send you b**** a** to the father [meaning heaven],” adding, “it ain’t gib be stupid when yo a** dead” and “I sincerely wish death upon your soul.” These threats were followed by the posting of the student with a bb gun, which was believed at the time to be a real gun. The court denied the student’s motion for preliminary injunctive relief, rejecting his argument that Mahanoy protected his off-campus Snapchat postings, and holding that the communications “were not merely profane, but they were actual threats”. The communications were “fighting words, and the very type of communications that the Supreme Court recognized as falling outside the protective scope of the First Amendment and, conversely, within the right of school to regulate.”

The First Amendment Protects a Student-Athlete’s Expression, Not Illegal Conduct

Student-athletes have been disciplined for violating a school’s code of conduct where the student’s conduct is illegal, not expressive. For example, in Cheadle v. North Platte R-1 School Dist., 2021 WL 3621877, 21-CV-06084 (W.D. Mo. Aug. 16, 2021), appeal filed to 8th Cir. on Aug. 31, 2021, a District imposed 45-day suspension of student’s participation in the 8th Grade Girls’ Volleyball Team competitions upon learning of the student’s consumption of alcohol in violation of the District’s Alcohol and Drug rule.The student shared a video with a small group on Snapchat that showed the student consuming alcohol. The student’s mother thereafter found the student, who was suffering from acute alcohol poisoning, unconscious. After the student received medical treatment, the student’s mother posted two messages, condemning the group’s behavior.

The court denied the student’s motion for preliminary injunctive relief to lift the suspension, rejecting the argument that the parent’s speech and student’s conduct constituted protected speech under the First Amendment. The court found “[t]he analogy between [Mahanoy]’s Snapchat photos and [the student-athlete’s] Snapchat video is a faulty one” because the Snapchat photos in the cheerleader case were pure speech, while the videorecording of the student-athlete consuming alcohol demonstrated a student engaged in an illegal act, not pure speech. The student-athlete did not engage in expressive conduct when she consumed alcohol because “alcohol consumption is more akin to non-expressive conduct, such as smoking, than expressive conduct, such as flag burning.”Finally, a District’s interest in deterring middle schoolers from consuming alcohol is stronger than a District’s interest in punishing high schoolers for vulgar language spoken off campus and after school-hours.

Conclusions and Recommendations

As Districts consider whether they retain authority to regulate student speech that occurs off-campus in the wake of the Supreme Court’s “cheerleader case,” they should recognize that although a public school’s off-campus jurisdiction is not limitless, the Court left intact a District’s disciplinary authority over student speech that constitutes a material and substantial disruption. While Districts may no longer be able to discipline a student-athlete for violating certain aspirational aspects of a code of conduct, Districts may generally continue to discipline a student-athlete based on speech that directly targets another individual and constitutes bullying, harassment, or a true threat of physical harm. Moreover, Districts may impose discipline on a student-athlete who engages in illegal behavior, including the consumption of alcohol or illegal drugs.

If you have any questions about your District’s code of conduct or how to enforce it with respect to student-athletes’ off-campus speech and conduct, please do not hesitate to contact us.