Welcome back, Loyal Daily Dawg Readers! I hope your break was restful and enjoyable, empowering you to handle the three-week sprint to the next holiday.
We’ll open this week with a review of a case from Katy ISD that addresses what rules coaches and sponsors can impose on students who participate in extracurricular activities. Background: last summer the SCOTUS held that the F-bombs dropped by Brandi Levy on her Snapchat account amounted to free speech, protected by the First Amendment. Therefore, the Court reasoned, it was improper for the school to suspend her from JV cheerleading. Mahanoy Area School District v. B.L. (2021).
That left a lot of coaches and sponsors nervous about what rules they could impose. We’ve always thought that schools could hold athletes, cheerleaders, and others who volunteer for extracurriculars to a higher standard. Is that still true? SCOTUS left it pretty vague.
Exactly what happened at the Whataburger after the football game in October, 2019 is in dispute, and I’m not going to try to sort it out here. What mattered, once it ended up in court, was that the school concluded that the team captain and starting quarterback had posted an inappropriate video on social media, taunting a student on the other team. That was the basis for disciplinary action. The captain/QB sued. Among other issues, the student (now the plaintiff) alleged that he was disciplined based on language in the Athletic Code of Conduct that was too vague.
The court listed three examples of language from the Code that the plaintiff claimed were vague to the point of being unconstitutional:
*Athletes should “display/model behaviors associated with positive leaders both in the school and in the community.”
*Athletes should “exhibit good citizenship at all times.”
*Athletes should “conduct themselves as gentlemen and ladies at all times, demonstrating respect for their administrators, teachers, and fellow students.”
Here is the legal definition of “unconstitutionally vague:”
A law is unconstitutionally vague if it (1) fails to provide those targeted by the statute a reasonable opportunity to know what conduct is prohibited, or (2) is so indefinite that it allows arbitrary and discriminatory enforcement.”
So wadddyathink, Loyal Readers? Applying that definition, is Katy’s Athletic Code too vague?
It turns out there is no wrong answer to that question. The court did not answer it, so you don’t have to guess at it either. Instead, the court ruled that vagueness did not matter:
Most importantly here, a void for vagueness challenge is ultimately a due process claim. To state a void-for-vagueness claim, a plaintiff must allege that he was deprived of a property or liberty right.
The student in Katy (the plaintiff) was not deprived of a property or liberty right. He was suspended from the football team for two games and stripped of his status as captain. It’s well established in the law that neither of those disciplinary measures deprive a student of property or liberty.
This won’t be the last challenge along these lines, so it is a good idea to review your rules for the students who participate in extracurricular activities. Pay particular attention to any rule that might be used to discipline a student for expressive activities. That’s where the legal challenges will arise. This one is McClelland v. Katy ISD, decided by the federal court for the Southern District of Texas on November 1, 2021. It’s cited at 2021 WL 5055053.
DAWG BONE: REVIEW THAT ATHLETIC CODE! THINK LIKE A LAWYER AS YOU DO!!
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: Toolbox Tuesday!!