Levy ex rel. B.L. v. Mahanoy Area School District, No. 17-cv-1734 (E.D. Pa.) October 5, 2017

A Pennsylvania high school removed a sophomore from the cheerleading squad because the student and a friend, while away from school on a weekend, posted a ‘snap’ — an online message that self-deletes after 10 seconds — conveying explicit sentiments about school, school sports, cheerleading, and “everything.”

The cheerleader’s parents sued and were successful in obtaining a temporary restraining order, which became a preliminary injunction following the court’s October 5, 2017, in which the court found that plaintiffs could demonstrate a high likelihood of success on the merits, where impermissible limits on First Amendment rights create irreparable harm, where the school would not be harmed by issuance of an injunction, and where the public has an interest in upholding constitutional principles.

The fundamental rules of student discipline for speech are long established. Students retain First Amendment expressive rights except where expression is vulgar, lewd, profane, or otherwise plainly offensive or may substantially disrupt the orderly administration of the school. Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). The Third Circuit has held that students ordinarily cannot be disciplined for off-campus online activity even if the activity makes its way to campus and even if the subject of the activity concerns the campus, although off-campus speech intended to disrupt the school may be disciplined. Layshock v. Hermitage School District, 650 F.3d 205 (3rd Cir. 2011).

In short, student on campus speech is constitutionally protected unless profane or disruptive and off-campus speech is protected unless intended to disrupt on-campus.

The trial court rejected the school’s argument that the school need follow these principles only where suspension or exclusion from school was in issue, implicating protected property interests, but not where removal from extracurricular activities only were involved. Although the cheerleader’s case involved removal from extracurricular activities alone and was of first impression, where the Third Circuit had drawn no distinctions among comprehensive disciplinary measures, the district court would not parse a new rule.

Levy ex rel. B.L. v. Mahanoy Area School Dist. (M.D. Pa., 2017)