Cheerleaders and the Internet: B.L. by and through Levy v. Mahanoy Area School District
B.L. by and through Levy v. Mahanoy Area School District, 2020 WL 3526130 (3d Cir. 2020)
B.L. was a high school student who failed to make the varsity cheerleading squad her sophomore year. Disappointed, she and a friend took a picture of themselves at a local store with their middle fingers raised and posted it to Snapchat, with the caption “Fuck school fuck softball fuck cheer fuck everything.” When the cheer sponsors learned about the picture, they removed B.L. from the junior varsity squad, for violating team rules that required cheerleaders to “have respect for [their] school, coaches, … [and] other cheerleaders”; avoid “foul language and inappropriate gestures”; and refrain from posting “negative information regarding cheerleading, cheerleaders, or coaches…on the internet.”
The Third Circuit ruled that the removal of B.L. from the cheerleader squad violated her right to free speech under the First Amendment, which the ACLU has called a “landmark decision” and “the most expansive ruling on students’ off-campus speech rights in the country.” They may be right – although it is far from clear that this decision will have much of an impact outside the Third Circuit, for three reasons. First, remember that this is the Third Circuit, the former stalking grounds of Justice Alito and long known for being extremely pro-free speech and against any expansion of Tinker (Justice Alito gave us Saxe v. State College Area School District, a case that makes it very difficult for schools to adopt anything that looks like a “hate speech” code).
Second, as even Judge Krause notes (ironically) in his majority opinion, “bad facts make bad law,” and the Third Circuit is also the home of two decisions (J.S. ex rel. Snyder v. Blue Mountain School District and Layshock v. Hermitage School District) arising out of the MySpace era, in which high school students were disciplined for creating fake MySpace pages for their principals. Because the courts in those courts were singularly unimpressed with the outrage and anguish expressed by the principals over the fake MySpace pages, those two cases led the Third Circuit to rule that Bethel School District No. 403 v. Fraser – which allows schools to discipline students for speech that is “vulgar, lewd, obscene, and plainly offensive” – does not apply at all to off-campus student speech. That Fraser does not apply under any circumstances to off-campus speech is not a position that has been widely adopted by other circuits.
Third, and of greater significance, Judge Krause ruled that Tinker v. Des Moines Independent Community School District – which allows schools to discipline students for speech that “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” – also does not apply, at all, to off-campus speech. This position has been entirely rejected by all other circuits; as the dissenting judge noted, “ours is the first Circuit Court to hold that Tinker categorically does not apply to off-campus speech.” Although Judge Krause gave lip service to the real problems faced by schools dealing with Internet speech by students, that ultimately did not sway him from a categorical decision that has probably been inevitable in the Third Circuit since J.S. and Layshock.
So ultimately this is why B.L. probably won’t have much impact outside the Third Circuit; many courts around the country have acknowledged that Tinker can apply to off-campus student speech, particularly online speech, even if those courts are still struggling with the outside parameters of tests to determine when Tinker applies. Even within the Third Circuit it is not clear whether B.L. is intended as an absolute rule, since the Court acknowledged that it was not dealing with off-campus online speech “threatening violence or harassing particular students or teachers”, and that such speech might require a different approach.