Can the school still prohibit drinking off campus for students in extracurriculars?

An interesting question came up in last month’s Zooming with the Dawg call. We were talking about the Supreme Court’s recent decision in favor of Brandi the Cheerleader who had been suspended from the JV cheerleading squad due to her vulgar Snapchat posts.  SCOTUS held that the school’s authority over students when they are off-campus still exists, but is “diminished.” 

So a Loyal Daily Dawg Reader posed the question: can our extracurricular code of conduct still prohibit possession and/or consumption of alcohol away from school? 

Brandi’s case was about conduct that is protected by the Constitution—free speech.  The Court’s decision in favor of Brandi was a recognition of the special protection that attaches to our freedom to express ourselves, even when we do that in ways that others find offensive.  Alcohol possession, on the other hand, is not constitutionally protected. In fact, for minors it’s not even legal. 

So my first thought was: of course you can continue to prohibit alcohol related behavior for those who sign up for extracurricular activities. It’s not in the same ballpark as Brandi’s foulmouthed Snapchat posts.  But being a lawyer, I had a second thought: some clever lawyer is going to challenge that. 

That challenge would focus on the Court’s emphasis on the legal doctrine of “in loco parentis” as the basis for school district authority to discipline kids.  When the students are at school or otherwise under the supervision of teachers and administrators, those school officials stand in the place of the parents (in loco parentis) and thus are authorized to regulate student behavior, and even punish inappropriate behavior.  Not so when students are on their own, away from school.   Key Quote:

B.L. spoke under circumstances where the school did not stand in loco parentis.  And there is no reason to believe B.L.’s parents had delegated to school officials their own control of B.L.’s behavior at the Cocoa Hut.

The argument will be made that parents have also not “delegated” to the school the authority to prohibit alcohol possession.  That’s up to the parents along with the police. 

All of which means you should take particular care with your extracurricular codes of conduct this year.  This case tells us that students and their parents should not be asked to “waive” their First Amendment rights in order to participate in athletics and other extracurricular activities.  But most of the conduct those codes prohibit is not constitutionally protected. It can be addressed in your codes of conduct. At Walsh Gallegos we can help you with that.


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