The Mahanoy Area School District has responded to a federal court ruling last week involving freedom of speech of a cheerleader.
A federal court ruled last Thursday that the Mahanoy Area School District violated the free speech rights of a student when the school removed her from the cheerleading squad in 2017 for off-campus expression.
A federal court ruled last Thursday that the Mahanoy Area School District violated the free speech rights of a student when the school removed her from the cheerleading squad in 2017 for off-campus expression.
The student, who was in tenth grade at the time, had posted a “Snap” to the popular social media platform Snapchat that, using expletives, expressed her frustration with school and with cheerleading. She was punished under cheerleading team rules that prohibit “disrespect” and prohibit posting any “negative information” about cheerleading online.
The Snap was posted on a weekend and while the student was not at a school activity.
The student, who is known by her initials, B.L., in court filings because she is a minor, was reinstated to the cheerleading team after winning a temporary restraining order in September 2017. Now in 11th grade, she continues to participate in cheerleading.
On October 5, 2017, the court granted the plaintiff's motion for preliminary injunction, finding that she was likely to succeed in her lawsuit, and issued an order reinstating B.L. to the cheerleading squad while the litigation proceeds.
On March 21, 2019, the court granted the plaintiff's motion for summary judgment, finding that the school did not have the authority to discipline her for her off-campus speech and that the school was in violation of the First Amendment.
In the ruling, federal district court Judge A. Richard Caputo explained that the First Amendment does not allow schools to punish students for their out-of-school speech just because that speech is inconsistent with what the school is teaching or because other students complain about it.
On Monday, March 25, 2019, the Mahanoy Area School District responded in a press release in regards to the ruling:
On Thursday, March 21, 2019, the United States District Court for the Middle District of Pennsylvania ruled that the School District violated the constitutional Free Speech rights of a cheer leader who violated the coaches’ rules when she made a crude gesture and statement on social media that was in violation of the cheerleading rules which she and her parent agreed to follow. The School District is disappointed in the decision but has not yet made a decision whether to appeal.
In defense of the case, the School District retained an educational expert, Dr. Lawrence Mussoline. He has 38 years of experience in public education, has a doctorate in education, and has been a superintendent in several school districts, including the highly successful Downingtown Area School District where he was responsible for its STEM academy, one of the public high schools in the nation. Explaining the basis for the rules governing extra-curricular activities and the fact that the rules at issue in this care are typical of what school districts have, he said:
School related extracurricular activities . . .are student privileges not mandated by statute. Participation in extracurricular activates like sports, including cheerleading, participation in school clubs, being allowed to drive a car and park on school property, attendance at a school dance, attendance at any school activity like an athletic event or concert, even attendance at a graduation ceremony are not statutory property rights afforded to children attending the Commonwealth's schools. They are privileges. Privileges that could be removed for much less reason than needed to suspend someone from the property right of attending school itself.
In my tenure as a high school principal and superintendent of schools we have disallowed participation in these extracurricular activities because of things like: poor grades, poor attendance, altercations with the local police that may have occurred during the summer or after school, breach of any school rule, the use of tobacco on or off school property, the suspected use of alcohol or the known use of alcohol on or off school property as an athlete to name a few. We have not allowed students from other schools to attend dances at our school. We have used a device for estimating blood alcohol content from a breath sample when we suspect someone at an extracurricular event or dance may be intoxicated.
On all these instances, we provide notice of expectations through rules that are typically signed off on by parents and/or students and we then apply the rules. As an example, the violation of evening pre-game curfew rules for an athlete could easily result in a game suspension and repeated violations of pre-game curfew rules could easily result in suspension from the team for the duration of the season. The basic premise is simple, extracurricular activates are privileges to be earned rather than rights to be guaranteed.
Examples of typical extracurricular rules are as follows: On game nights students are to be in their home by 9:00 pm as a pre-game curfew (yes, sometimes coaches call or visit homes), the use of tobacco, drugs, or alcohol at home or in school during the season, students are to dress with a shirt and tie or wear a dress or dress slacks when traveling to all away games, uniforms are to be cleaned and pressed, equipment like hockey sticks, shoulder pads, lacrosse helmets, etc. or simply uniforms that are damaged due to neglect could be the responsibility of the students to pay for replacement equipment.
Inappropriate student conduct on and off school grounds when an athlete is addressed in all extracurricular rules. Violations of any of these rules could result in suspension or removal from the extracurricular activity.
Inappropriate conduct could range from disrespect toward the coaches, disrespect toward
teammates, disrespect toward the opposing team, disrespect toward officials, disrespect toward school employees, and even disrespect toward the school. Disrespect could include: profanity, aggressive behavior, non-verbal unacceptable behavior, threatening someone physically or verbally, the use of social media to threaten someone, talking back to a coach, cutting practice, discrediting the program after some event to the disdain of the student, cutting practice, fighting, gossip, and in the 21st century the use of social media as a medium of disrespect usually tied to the lack of self-control.
A premise underpinning all extracurricular disrespect rules is the fact that student athletes including cheerleaders have the privilege of wearing the uniform with the school name and school colors and discrediting anyone equates to discrediting the school and the community. Typically, the school and the community are often thought of as being one in the same. Because of the bifurcation of school attendance and extracurricular rules, schools are able to teach critical life skills to students participating in extracurricular activities that they would not be able to teach within the guaranteed property right of the mandatory attendance laws governing K-12 schooling. It is through these extracurricular rules that we impart very important life's skills. For example, if B.L. were hired by a private company after graduation from college and she were to post on social media on-line the exact message she posted about the school and cheer squad with respect to her private employer, she would be rightfully disciplined if not fired.
These rules characteristically extend well beyond the school day into the home to ensure proper training, proper preparation, responsibility, resilience, and respect. All critical, non-cognitive life skills needed after graduation from high school to be successful in the job word and in life. (Emphasis added)
We quoted this portion of Dr. Mussoline’s report because we believe that it encapsulates the reasoning and rationale for the rules and underscores the facts that he rules are typical and serve a significant educational purpose. Unfortunately, the Court concluded that enforcement of these rules when a student is away from school and her actions did not cause a disruption to school activities, it is a violation of the First Amendment. We must emphasize, however, that the Court did not hold that the rules were unconstitutional even though the Plaintiffs asked the Court to do so. Further, the Court did not hold that the rules could not be enforced for conduct occurring in school or during school related activities.
We also want to stress that the student and her parents were aware of the rules and agreed to comply with them. The School District will allow the community to judge whether typical rules that are agreed upon before beginning an activity and as a condition for participation should be able to be enforced by school districts. The School District is trying to teach not only academic subjects, but also respectful behaviors. We want to thank all of the students who have abided by the rules and have acted respectfully.