A cheerleader in San Benito was kicked off the squad because of content she posted on her Twitter account that the 5th Circuit described as containing “profanity and sexual innuendo.” The parents appealed the decision to the principal and superintendent, but the decision stood. Then the parents took it to court. We recently got a decision from the 5th Circuit.
The claim was about infringement of free speech rights. The Twitter posts were, indeed, vulgar and offensive, but this was all done off campus, and there was no suggestion of violence. There was no bullying, no threats. Just a teenager being a teenager. The suit named as defendants the school district, two cheerleader sponsors, the principal and the superintendent. The 5th Circuit held that all of the individual defendants were entitled to “qualified immunity” because their actions did not violate legal standards that were “clearly established” at the time. Case dismissed.
There are few things LESS clearly established in the law than the status of student use of social media off campus. In this decision the court reviews its own precedents and confesses that “our cases have failed to clarify the law governing school officials’ actions in disciplining off-campus speech.” No kidding. Thus the court did not say that the Twitter posts were protected under the 1st Amendment, and did not say they were not. Instead, it took the easier path—holding that the law was too murky to permit any cheerleader sponsor, or school administrator to be held personally liable.
But the court attempted to provide some guidance for the future. Some key points:
1. The fact that the student and her mother signed off on a Cheerleader Constitution that put them on notice that social media activity would be monitored, and might be penalized, was a factor here. So it’s a good idea for schools to continue to require this.
2. The fact that the Twitter account identified the student as a San Benito cheerleader mattered also. By including that information on her Twitter account, the ugly posts reflected poorly on the school.
3. “Most notably” the court observed, the girl was not suspended from school, but only from an extracurricular activity. This suggests that if harsher penalties had been imposed, the case might have come out differently.
4. You can’t discipline a student for off-campus speech simply because you find it offensive.
5. As a general rule, the student’s intent for the speech to reach the school community is important. The court made this observation and then followed it by noting how the Internet muddies the water. Here’s the Key Quote:
Because a school’s authority to discipline a student speech derives from the unique needs and goals of the school setting, a student must direct her speech towards the school community in order to trigger school-based discipline. We acknowledge, however, that the “pervasive and omnipresent nature of the Internet” raises difficult questions about what it means for a student using social media to direct her speech towards the school community.
Kudos to Katie Payne of our firm’s San Antonio office for excellent representation of the district and the employees in this case. Katie was assisted by Leandra Ortiz and Mike Saldana of our Rio Grande Valley office. The court dismissed the case in its entirety—district and individual defendants. The case is Longoria v. San Benito CISD, decided by the 5th Circuit on November 4, 2019. We found it at 2019 WL 5687512.
DAWG BONE: WHAT’S CLEARLY ESTABLISHED CONTINUES TO NOT BE VERY CLEARLY ESTABLISHED.