Prevailing Legal Standards
Since the launch of MySpace in 2003, Facebook in 2004, Twitter in 2006, Snapchat in 2011, Instagram in 2012 and TikTok in 2017, along with those sites’ numerous social networking progeny, schools and athletics programs have been struggling with a new issue related to codes of conduct for students and student-athletes: the extent of school legal authority over off-campus postings by students on social media websites.
Many high schools have adopted social media policies, some that apply to all students and others that apply to students participating in specified extracurricular activities. Many scholastic athletic programs have incorporated social media guidelines into student-athlete sports participation agreements, with the penalties for policy violations ranging from suspensions from participation for prescribed time periods or numbers of contests to permanent dismissal from teams.
An increasing number of lawsuits are being filed each year by students suspended from school or athletics for allegedly inappropriate postings on such sites, with the plaintiffs asserting that they have protected First Amendment free speech rights to engage in off-campus, online speech and that the codes of conduct pursuant to which they were disciplined were unconstitutionally vague because the policies did not adequately define prohibited behaviors.
The challenge for schools attempting to develop and enforce social media policies has been the lack of clear legal guidelines regarding school authority to restrict off-campus student speech that takes place via new technologies. From 2011 to 2015, seven social media lawsuits involving students were decided by U.S. Courts of Appeal in six separate circuits, two in favor of students and five in favor of schools, with all of the rulings based on the same general legal principles. Although the losing parties in all seven cases attempted to appeal to the U.S. Supreme Court, the fact that the Court of Appeal decisions were based on the same basic legal standards led the high court to “deny certiorari” (refuse to hear an appeal) in all seven of the cases because of the lack of confusion that would have been created if conflicting legal standards had been applied by the various appellate courts that might have resulted in intervention by the Supreme Court in order to create uniformity of law across the country.
All seven of the cases – Doninger v. Neihoff (2nd Cir.), J.S. v. Blue Mountain Schools and Layshock v. Hermitage School District (3rd Cir.), Kowalski v. Berkeley County Schools (4th Cir), D.J.M. v. Hannibal Public School District (8th Cir.), Wynar v. Douglas County Schools (9th Cir.), and Bell v. Itawamba Schools (5th Cir.) – relied on the legal standards set forth in four landmark U.S. Supreme Court cases addressing student free speech rights.
The first, Tinker v. Des Moines ISD (1969), was a dispute that began with students wearing black armbands to school to protest the Vietnam War, with the Supreme Court stating in its written opinion that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate” and that schools have authority to limit student speech only when it would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” a standard that did not apply to the passive and non-disruptive actions of the students wearing the armbands.
School authority over student speech was later extended by the Court in Bethel School District v. Fraser (1986) to on-campus use of vulgar and lewd language, in Hazelwood School District v. Kuhlmeier (1988) to curricular speech such as a school newspaper, and in Morse v. Frederick (2007) to advocacy of violation of a school anti-drug policy. These four landmark student speech cases established the legal standards that are now being used by lower courts to resolve judicial challenges to sanctions imposed on students and student-athletes for inappropriate postings on social media sites; however, those legal principles do not fit squarely into the context of modern technologies. School administrators and athletic personnel struggle with the application of the concept of “substantial disruption” from Tinker, the definition of “on campus” from Bethel, the boundaries of “curriculum” from Hazelwood, and the reach of “policy” from Morse, and school officials have had difficulty determining whether they had constitutional authority to punish students and student-athletes for social media postings such as communications complaining about the competence of a coach, or those involving petitions advocating the firing of a coach, or those critical of classmates or teammates, or those stoking the rivalry with another school before a big game, or those that might be interpreted by some readers but not all as a threat, or those involving political advocacy such as calls for national anthem protests at scholastic sports contests, commentary on social justice issues, and advocacy of gun control as it relates to school shootings.
However, in 2020, two social media cases were decided by U.S. Courts of Appeal using conflicting legal standards, one ruling in favor of a student-athlete and one ruling against a student-athlete, thus increasing the odds that the U.S. Supreme Court might agree to hear an appeal of one or both of the cases in order to create a highly-specific, uniform rule of law governing school authority over student postings on social media. Given that over the past 20 years, there has been an average of more than 5,000 requests for certiorari per term and that the Supreme Court has heard less than 100 appeals each year, the chances are still low that the Court will intervene, but the disagreement regarding the controlling legal standards between the U.S. Third Circuit and the U.S. Fifth Circuit in the following two cases make it more likely than it has been since the advent of the era of social media that schools might finally receive some specific guidance regarding this highly unique issue.
The Mahanoy Area School District Case
In July 2020, the U.S. Court of Appeals for the Third Circuit upheld a U.S. District Court decision from March 2019, in Levy (B.L.) v. Mahanoy Area School District, granting summary judgment to a cheerleader (B.L.) dismissed from the squad for inappropriate postings on social media allegedly in violation of the student-athlete code of conduct at Mahanoy Area High School (Pennsylvania), concluding that her communications were constitutionally protected by the Free Speech Clause of the First Amendment, and making permanent the temporary injunction restoring her to the cheer team that had been issued in October 2017 by the same lower federal court.
In May 2017, off-campus and using her privately-owned phone, B.L. took a photo of herself and a friend holding up their middle fingers and posted it on the social media platform Snapchat with the caption “f*** school, f*** softball, f*** cheer, f*** everything.” A few days thereafter, the cheer sponsor informed B.L. that she was being dismissed from the squad because the profane posting violated the student-athlete code of conduct because it was “disrespectful to the coaches, the school, and the other cheerleaders.”
The U.S. District Court’s 2019 decision that the cheerleader’s free speech rights had been violated was based on the precedents established in the U.S. Supreme Court’s rulings in Tinker – a substantial disruption had not occurred as a result of the Snapchat posting – and Bethel School District v. Frasier, through which the high court limited the authority of schools over students for the use of profane language to that which occurs on campus.
The San Benito ISD Case
In November 2019, in Longoria (M.L.) v. San Benito Independent Consolidated School District, the U.S. Court of Appeals for the Fifth Circuit affirmed a July 2018 ruling by a U.S. District Court in favor of the district in a case involving a San Benito High School (Texas) cheerleader who was removed from the squad after the discovery on her Twitter account of 10 posts containing profanity and sexual innuendo that she had either “liked” or “retweeted,” actions that allegedly violated the team’s social media policy in its Cheerleading Constitution.
Both the appellate court and the lower court concluded that the defendants were entitled to qualified immunity and dismissed the suit for failure to state a claim, thereby sidestepping the issue whether per Tinker and Bethel, the cheerleader’s First Amendment rights had been violated by her removal from the squad. The decision was a marked deviation from the analytical approach used in all of the previous federal appellate decisions regarding the free speech rights of students related to postings on social media and as such, increases the likelihood – still very small – that the U.S. Supreme Court might grant certiorari and agree to hear the appeal of either the Levy (B.L.) v. Mahanoy Area School District case or the Longoria (M.L.) v. San Benito Independent Consolidated School District case in order to clarify the controlling legal standards and create nationwide uniformity of law on the issue.
On January 8, 2021, The U.S. Supreme Court granted certiorari and agreed to hear an appeal of the Levy (B.L.) v. Mahanoy Area School District decision in order to address the question of school authority over off-campus, inappropriate postings by students or student-athletes on social media. The oral arguments in the case have not yet been docketed, but are likely to be held sometime in March (the audio of those oral arguments will be available online at www.oyez.org) and a decision from the high court is expected sometime near the end of its term in late June.
Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.