Some school districts have spent thousands of dollars fighting issues involving students’ free speech rights, and the trend of their losing cases continues as evidenced by a federal appeals court ruling in a Schuylkill County case in late June.

The landmark decision decrees that public schools cannot censor students’ off-campus speech based on a fear of disruption of school activities. The 3rd Circuit Court of Appeals made the ruling in the case of a Mahanoy Area High School student, who was removed from her junior varsity cheerleading squad for an obscenities-laced post over her frustration with the team, the school and other matters on Snapchat, a social media platform.

A federal judge reinstated her to the team in the fall of 2017 after her father had filed a lawsuit on his daughter’s behalf. The student graduated in 2019. Identified only by the initials B.L. because she was a minor at the time of the filing of the suit, the then-sophomore student posted her rant off-campus without involving school property and on a weekend. According to the American Civil Liberties Union, which entered the case on the girl’s behalf, the appeals court unanimously agreed that the school violated the First Amendment, and two of the three 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 on campus.

ACLU attorneys said this ruling is the most expansive ruling on students’ off-campus speech rights in the country.

“This is an important decision because it recognizes that students who are outside of school enjoy full free speech rights, not the diluted rights they have inside the schoolhouse,” said Witold Walczak, legal director of the ACLU of Pennsylvania. “Schools have historically used the ‘disruption’ standard to punish students for criticizing what’s happening at school. This decision clarifies that young people enjoy full First Amendment protection when outside of school.”

The school district appealed the original 2017 federal court decision maintaining that the student and her parents signed an authorization before she tried out for the squad agreeing to abide by the “Cheerleading Rules,” which require squad members “to have respect for the school, coaches, teachers, other cheerleaders and teams.”

The rules prohibit foul language and inappropriate gestures. “There will be no toleration of any negative information regarding cheerleading, cheerleaders or coaches placed on the internet,” the written rules say.

In ruling against the district in the earlier case, the judge said that despite the authorization signing, a student cannot sign away First Amendment rights.

When the two coaches became aware of the post, they initiated action which led to the girl’s suspension from the squad.

According to the facts in the case, agreed to by both sides, the student, posing in street clothes with a friend, middle finger raised, took a selfie at a teen hangout in Mahanoy City. On top of the photo, she added the following text: “(Expletive) school, (expletive) softball, (expletive) cheer, (expletive) everything.” She then posted the captioned photo on her private Snapchat account on a weekend where it could be viewed briefly by about 250 of her “friends.”

In 2011, the U.S. 3rd Circuit Court of Appeals ruled in two cases brought by the ACLU of Pennsylvania that schools could not discipline students for social media posts created off-campus when the posts do not substantially disrupt school activities.

“The law is crystal clear here,” said ACLU counsel Molly Tack-Hooper. “School districts have no power to punish students for swearing outside of school.”

The school district is made up of about 1,000 students from the boroughs of Mahanoy City and Gilberton and Mahanoy, Delano and Ryan townships.

I agree with Reggie Shuford, executive director of the ACLU of Pennsylvania, who said that public schools need to stick to educating students and stay out of the business of disciplining them during their off-hours comments.

By Bruce Frassinelli | tneditor@tnonline.com