High School that Dismissed Cheerleader from Team for Private Tweets Not Liable for Violating Her Free Speech Rights
Teenagers are all over social media applications like Twitter, Instagram, and Snap Chat. They use these channels to chat, gossip, complain, flirt, and sometimes bully others. Because texting tends to be very informal and spontaneous, and because the F-word and other profanities are rife in popular culture and songs, teenage communications can be spiced with naughty words and expletives. And young persons sometimes freely share intimate details and thoughts that an older person might hesitate to share with the world.
One of the classic venues where rights and values clash and have to constantly be reconciled and balanced is the school. In order to achieve its educational mission, a school must enforce a certain level of structure, order, and formality. Students must try to sit quietly in class, listen intently to instruction, do their homework, and treat each other with basic decency and civility. Fighting, bullying, and other forms of physical and verbal aggression conflict with the educational setting. And students are required to treat their teachers and administrators with respect and due regard for their authority.
But students in school still have fundamental rights under the United States Constitution, including the right to due process—fair notice and hearing before disciplinary action, for example—the right against unreasonable searches and seizures, and the rights to religious freedom and free speech. In the words of the seminal case on student speech, Tinker v. Des Moines Independent Community School Dist., 339 U.S. 503 (1969), the United States Supreme Court proclaimed that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Tinker involved a group of junior high students who in 1965 wore black armbands to school to protest the Vietnam War, including 13-year-old Mary Beth Tinker and her older brother. The school board suspended the children for wearing the armbands. (After a few days the children removed the armbands and returned to school, but wore black clothes the rest of the school year.)
The Supreme Court ruled 7-2 that the school’s action violated the students’ rights of free speech under the First Amendment. The majority opinion written by Justice Abe Fortas balanced the school’s legitimate right to prevent “substantial disruption of or material interference with school activities” with the students’ right to express their views on the war. Because there was no showing that the armbands caused actual or imminent disruption of any school function, the balance of rights tipped in favor of the young protestors.
Since Tinker was decided, however, the Court has upheld school punishment of student speech in several situations where disruption was not the issue, essentially creating exceptions to the rule in Tinker.
In Bethel School District No. 403 v. Fraser, 393 U.S. 675 (1986), a high school senior made a speech at a school assembly in favor of a fellow student who was running for student council. Matthew Fraser employed a number of risqué double entendres that his friend was “rock hard” and “firm in his pants” and would pound and drive his agenda home to the point of climax. In poor taste, yes—sophomoric, yes—but not disruptive of the classroom environment. But school administrators were incensed and suspended Fraser for three days, and barred him from speaking at graduation or serving on the student council.
The Court, in another 7-2 opinion written by Chief Justice Warren Burger, held that school authorities were within their rights to “prohibit the use of vulgar and offensive terms in public discourse.” In other words, prudish school authorities are entitled to punish students for crude or ribald speech in the context of a student assembly (Fraser’s speech did not rise to the level of obscenity, which is not protected by the Constitution).
Two years later, the Court decided Hazelwood v. Kuhlmeier, 484U.S. 260 (1988), ruling that high school administrators were entitled to censor two articles prepared by student journalists as part of a journalism class, dealing with student pregnancy and the effect of divorce on students. In a 5-3 opinion written by former professional football player Justice Byron “Whizzer” White, the Court was troubled that the school newspaper, which was sponsored and funded by the school district, could be perceived by the public as representing the views of the district. The Court saw this as a crucial distinction from Tinker, where students independently engaged in expressive protest. The Court also was deferential to the principal’s privacy-based concern that one of the articles risked revealing the identity of pregnant students.
After a lapse of almost 20 years, the Supreme Court again waded into the school speech swamp in Morse v. Frederick, 551 U.S. 393 (2007), the “Bong Hits 4 Jesus” case. The school was Juneau-Douglas High School in Alaska. The Olympic Torch Relay was going to pass in front of the school. The principal decided to allow students to exit the school and stand on the sidewalk to witness the flame pass by. Senior Joseph Frederick and his friends came to school prepared on the big day with a 14-foot banner that said “BONG HITS 4 JESUS,” which they unfurled across the street, facing the school. They later explained they were not advocating any particular viewpoint; they just wanted to get on TV.
The principal, aghast, crossed the street and confiscated the banner; the school suspended Joseph for ten days as punishment for his stunt. The superintendent justified the principal’s decision as follows:
The common-sense understanding of the phrase ‘bong hits’ is that it is a reference to a means of smoking marijuana. Given [Fraser’s] inability or unwillingness to express any other credible meaning for the phrase, I can only agree with the principal and countless others who saw the banner as advocating the use of illegal drugs. [Fraser’s] speech was not political. He was not advocating the legalization of marijuana or promoting a religious belief. He was displaying a fairly silly message promoting illegal drug usage in the midst of a school activity, for the benefit of television cameras covering the Torch Relay. …
In any event, Chief Justice Roberts writing for a 5-4 majority upholding the school’s disciplinary action, saw no merit in Fraser’s argument that the conduct occurred outside of school. The principal had deemed the event an official school function, the banner was plainly visible to the school across the street, and “the high school band and cheerleaders performed ….”
The Court held the school was entitled to suspend Frederick because the banner could be reasonably understood as promoting illegal drug use. However, the Court also viewed the speech as a “fairly silly” stunt intended to provoke TV coverage. In the Court’s view, “this [was] plainly not a case about political debate over the criminalization of drug use or possession.” So, by the Court’s logic, the speech could be suppressed because it objectively appeared to advocate use of an illegal drug, and it could also be suppressed because it was not actually intended to advocate anything. The Court felt that, given the dangers of drug use to young people, the school was justified in suppressing the speech.
Morse v. Frederick can be understood as marking out a health and safety exception to the “substantial disruption” test of Tinker. It also takes an expansive view of when conduct is in school or a school-related activity. If the band is playing and the cheerleaders are there, it’s probably a school-related activity!
Hazelwood v. Kuhlmeier, the school newspaper case, stands for the proposition that a school has elevated discretion to suppress speech that is part of the school curriculum or could otherwise be reasonably viewed as endorsed or sponsored by the school, even if there is no danger of substantial disruption.
The Social Media Revolution
While the Bong Hits 4 Jesus case was winding through the courts, in July 2006, a startup based in San Francisco called “Twitter” went live. By 2018, the Twitter microblog network had more than 320 million active users.
Around that same time, another social network service called Facebook was made available to anyone at least 13 years old (the platform, invented by Harvard student Mark Zuckerberg in his dorm room and originally named Facemash, had previously been mostly limited to college campuses). As of April 2019, Facebook had 2.38 billion active users worldwide.
A number of other social media and messaging platforms are available today, such as WhatsApp, Facebook messenger, Instagram, Snapchat, and Reddit. Young people are particularly heavy users of these services, enabling spontaneous communications with friends at any time of day or night.
Which brings us to the November 4, 2019 decision of the United States Court of Appeals for the Fifth Circuit in Longoria v. San Benito Independent Consolidated School District, No. 18-41060, which addressed the extent to which a school can discipline a student for private communications with friends on a social network. (The Fifth Circuit Court of Appeals, based in New Orleans, is the appellate court for federal cases arising in Texas, Louisiana, and Mississippi.)
ML (referred to by initials in the opinion because she was a minor), a sophomore, was chosen to be head varsity cheerleader at San Benito High School, located in the southernmost tip of Texas near Brownsville. But her appointment was short lived. She and her mother were called into a meeting with the cheer coaches, who confronted her with “a series of posts on her personal Twitter account containing profanity and sexual innuendo.” The coaches penalized her with demerits for the messages and dismissed her from the team. They found that she had violated a proviso of the Cheerleading Constitution that required team members to “maintain ‘appropriate’ conduct on their personal social media accounts.” ML had signed the Constitution, but was given no prior warning that her social media posts were under review or that anything she posted was not “appropriate.”
What was so bad in ML’s tweets that required her summary dismissal? Eight of the tweets were messages created by others that ML “liked.” These messages feature liberal use of the F-word, a couple of “bitches,” and, in one message, “I love kissing lmao” – using the acronym for “laughing my ass off.” So, she liked—but did not retweet—tweets containing bad words.
The cheer coaches also awarded demerits for two actual posts: ML retweeted (reposted on her account) a tweet from a user named “Bitch Code,” and responded “Yes” to a tweet that asked “Did pope split you in half??”—apparently a sexual reference, according to the Urban Dictionary cited by the court. ML’s Twitter page identified her as a member of San Benito Varsity Cheer.
To this observer, these posts are weak tea, and the response to them unduly harsh and disproportionate, especially given the lack of any prior notice or warning. Yes, there are F-words and B-words (surely “lmao” is not a problem), but there is no bullying or attacking other students here.
So eight of the tweets were “likes”—which is not necessarily an indication of endorsement; it can mean nothing more than “I saw your tweet.” Retweeting a post from someone called “Bitch Code” seems harmless (apparently there was no issue with the content of the tweet). And there is what appears to be an oblique admission of sexual activity (query whether a varsity football player would be kicked off the team for an isolated reference to sexual activity on a private Twitter page).
ML was dismissed from the team because she was assigned 10 demerits for these ten Twitter likes and tweets. The Cheerleading Constitution required dismissal for ten or more demerits. So even the most innocuous of these communications were necessary to get her into dismissal territory. (Fortunately, ML was allowed back on the team the following year as co-captain.)
ML and her mother sued the school district and officials in federal court, where they won a battle but lost the war. The district court ruled that they had successfully stated a claim for money damages based on a violation of ML’s free speech rights under the First Amendment. The court noted that the allegedly inappropriate tweets were off-campus in nature, and “were not threatening or directed towards the school community.”
But the trial court ruled that the defendants were nevertheless immune from the lawsuit because of qualified immunity, which bars liability on the part of government officials unless the injured party establishes that there was a violation of a clearly established constitutional right.
The Court of Appeals affirmed, but stated that it was “mindful of the pressing ‘need to provide clear guidance for students, teachers, and school administrators that balances students’ First Amendment rights … with the vital need to foster a school environment conducive to learning.” Longoria, 942 F.3d 258, 265 (5th Cir. 2019). “Given the ubiquity of social media and the permeable boundaries between on-campus and off-campus speech, this task is complicated but increasingly urgent.”
The appellate panel proceeded to “articulat[e] limitations derived from our existing precedent for school discipline of student off-campus speech.”
Reviewing the Supreme Court’s prior cases, the court found that Tinker established the general rule that student speech is protected unless it is substantially disruptive of the school environment, but that Frazer, Hazelwood, and Morse “exemplify three narrow exceptions” to Tinker. The court found that law in the Fifth Circuit was not clear on how off-campus student speech should be treated under the First Amendment, so the school officials here were not on notice that disciplining ML would violate the Constitution. In other words, if the law is not clear as to where the line is, school officials cannot be held liable for crossing the line.
The court laid out three general principles for future reference:
- “First, nothing in our precedent allows a school to discipline non-threatening off-campus speech simply because an administrator considers it ‘offensive, harassing, or disruptive.”
- “Second, it is ‘indisputable’ that non-threatening student expression is entitled to First Amendment protection, even though the extent of that protection may be ‘diminished’ if the speech is ‘composed by a student on-campus, or purposefully brought onto a school campus.’”
- “[F]inally, as a general rule, speech that the speaker does not intend to reach the school community remains outside the reach of school officials.”
The court of appeals did not opine on whether the school violated ML’s speech rights, even though she clearly did not intend for her tweets to “reach the school community” and there was no hint of disruption of the school environment.
The court did comment that it considered it important that ML’s discipline involved exclusion from an extracurricular activity, rather than being suspended or removed from school altogether. The court cited an earlier Fifth Circuit case that involved a cheerleader suspended from the squad because of belligerent Facebook messages she sent to the team captain, Jackson v. Ladner, 626 F. App’x 80 (5th Cir. 2015). This earlier case had also found that there was no violation of a clearly established constitutional right on the part of the suspended cheerleader.
With respect to ML’s argument that the Cheerleading Constitution’s prohibition of “inappropriate” social media postings was unconstitutionally vague in violation of the Due Process Clause, the court of appeals cited another case that held that “[a] student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement.” Walsh v. Louisiana High School Athletic Ass’n, 616 F.2d 152 (5th Cir. 1980).
The court’s Due Process ruling does not necessarily control the proper analysis under the First Amendment, but it does signal a view that extracurricular activities are not as important as core classroom activities. For many students, however, activities that happen outside of the classroom, such as cheerleading, sports, band, and theater are a major motivation to stay in school and study with sufficient diligence to remain eligible. Participation and success in extracurricular activities can serve as a well of self-esteem, community and camaraderie that can be crucial during the middle school and high school years when children often struggle to develop positive self-images and healthy relationship skills with others, and to manage negative behaviors in others. As a hard-core band nerd, I would urge the courts not to underestimate the value and benefits of extracurricular activities within the tapestry of the scholastic experience.
In conclusion, the three general rules formulated by the court of appeals panel in ML’s case provide helpful guidance to students, school officials, and courts concerning how to accommodate student expression via social media and balance it with the need to preserve an orderly and safe environment for learning.
Here are some bonus guidelines I would add:
- Parents and their children should take the time to read documents like the Cheerleading Constitution before signing. They often contain vague requirements like the prohibition on “inappropriate” social media postings in this case. Ask what the standards are, to what extent student communications are monitored, and what the notification process if there is a possible violation. The is considerable time and expense involved in serious extracurricular activities—make sure you know what the rules are and who enforces them.
- If student speech does not cause actual or imminent substantial disruption of the school environment, administrators should hesitate to suppress or punish the speech, especially without notice and an opportunity to comply. In my opinion, the cheer coaches overreacted to ML’s likes and posts, and should have given her an opportunity to understand and conform to their expectations before lowering the boom. That would have saved the school an awful lot of money in attorney’s fees that could have been spent on better things, like pom poms, clarinets, and lumber and paint for young thespians.
- Both the boon and bane of social media is its spontaneity. Parents should counsel their teenagers that once you hit the send button you cannot take it back, and it is easily forwarded and shared with others. If you’re dishing dirt about a teacher or another student, it will most likely get back to them. Assume that your snarky messages in a bottle will quickly wash up on the shore of the school community.
- For student journalists, make sure you understand the guidelines and review processes for your work. If possible and appropriate, student publications should indicate they reflect the views of the journalists rather than the school. And if there is a particularly sensitive or provocative subject you want to address, particularly if it threatens the privacy or reputations of specific people, get clearance in advance from your teacher or consider producing and publishing it in an off-campus setting.
- If you want to unfurl a BONG HITS 4 JESUS or I LOVE KISSING LMAO! banner, do it at the public park down the street from the school, outside the context of a school-sponsored activity. You’re entitled to a life after hours, away from school, but it needs to be separated from school in time and space to stay outside the jurisdiction of school officials. When you are on campus, or at a school-related event, or even across the street from school, or if your speech or conduct are directed in a negative or aggressive manner at someone at school, the school may have a legitimate and lawful basis to control, limit, and discipline the sparks that fly out of your Twitter fingers.
- Finally, no threat of harm directed toward a teacher, coach or fellow student will ever be protected. Just don’t go there. If you’re being bullied or abused, talk to a teacher or other responsible adult and get help. School needs to be safe and comfortable for you too.