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  • Jeffrey R. Merlino

DID THE RULES JUST CHANGE ON STUDENT ATHLETE “TRAINING RULES”?

On June 30, 2020, a federal appeals court for the 3rd U.S. District, which includes New Jersey, ruled that public schools cannot discipline students for their off-campus/off-hours social media posts even if the speech is a violation of the agreed-upon athletic Training Rules. In a case brought by the ACLU on behalf of the student, B.L., the federal Third Circuit Court of Appeals ruled that the Mahanoy Area High School District in Schuylkill County, Pennsylvania violated the First Amendment free speech rights of a student when it removed her from the cheerleading team for using an expletive on the social media platform Snapchat to describe her frustration with the team while off campus over a weekend.

The appeals court unanimously agreed that the school violated the First Amendment, and two of the three sitting judges also ruled that public schools do not have the power to discipline students for off-campus speech even if the speech causes or is likely to cause a disruption at school or with the team.

The student, who is identified by her initials B.L. in court documents, was in tenth grade when the case started in 2017 and graduated this year.

The post for which B.L. was punished featured a photo of her and a friend at a convenience store holding up their middle fingers with the text “f*** school f*** softball f*** cheer f*** everything” superimposed on the photo. B.L. posted the Snap on a Saturday and made it available to approximately 250 of her Snapchat “friends.” One of her followers took a screenshot of the post and sent it to the cheer coach.

The school suspended B.L. from the cheerleading team under student-athlete Training Rules, which prohibited 1) “disrespect” towards the school and 2) posting any “negative information” about the team on social media.

Prior to this case, most districts have adopted Training Rules allowing schools to prescribe and control conduct, including speech, that “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” regardless of whether the conduct was in-school or off-campus. (quoting the U.S.

Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)).

In B.L., the school district defended its actions “to enforce socially acceptable behavior” by banning “vulgar, lewd, obscene, or plainly offensive” speech offering the analogy that students who join extracurricular activities “represent their schools much in the way that government employees represent their employer.” So, by going out for the team, it posited, students subject their freedom of speech rights to the coach so long as the regulated speech does not involve “a matter of public concern.” This argument relies on the assumption that “disruption will occur when a subordinate challenges the authority of his or her superior.” (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). The 3rd Circuit Court disagreed and concluded that neither Tinker nor Pickering apply to off-campus speech that does not threaten violence, harass others, or is otherwise harmful.

The B.L. Court went on to state: “We sympathize with our sister circuits, which have faced the unenviable task of assessing students’ free speech rights against the backdrop of “school officials’ need to provide a safe school environment,” … [but the] assumption is not one we can accept, though, because it subverts the longstanding principle that heightened authority over student speech is the exception rather than the rule.”

The takeaway: in 2020, using the “f-word” is no longer considered by our courts to be offensive, so do not attempt to discipline a student for using it off campus even if it is posted on-line or a violation of agreed-upon Training Rules.

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This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to the attorney of your choice. Contact Jeffrey R. Merlino or Anthony P. Sciarrillo of Sciarrillo Cornell at edlawgroup@sciarrillolaw.com.

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