After S.J. was removed from the high school cheerleading squad, the girl’s father sued the district, the principal, two assistant principals, the cheerleading advisor, the HR director, a deputy superintendent, and the superintendent, alleging violations of S.J.’s First Amendment rights.

Shortly after making the squad, S.J. joined the others at an ice cream social and received a new team t-shirt.  The cheer advisor reminded the students not to get on social media and gloat.   By that time, S.J. had received the cheer constitution and attended meetings in which the cheer sponsor spoke to them at length about inappropriate social media use.

The principal also told the squad that there was a “zero tolerance” policy for violations of the cheer constitution and that violations would result in expulsion from the cheer squad. The cheerleaders agreed to be positive on social media.

Within hours of these admonitions, S.J. posted a video of herself with four other girls wearing their new cheer shirts and singing the lyrics of Big Sean's song “I.D.F.W.U.” to her SnapChat story.  Lyrics from the song that S.J. posted included:  “I don't f*** with you, you little stupid a*** b****, I ain't f**** with you.”

Of course, someone saved a copy and showed it to school authorities.  All five were removed from the team.  However, the four other girls who had not actually posted the video, were reinstated after completing 50 hours of community service, reading an apology to other team members, and writing a statement on appropriate social media use.

Initially, S.J. was not given the option of reinstatement, but after several appeals she was offered a similar deal as the other four.  If she completed all of the same conditions, she could be reinstated.  The parents rejected the offer, instead, demanding her unconditional reinstatement. During the negotiations, school officials observed S.J. to be “unrepentant” and disingenuous about how the video was posted.

Was the cheerleader’s off-campus social media post protected by the First Amendment?

Unlikely.  The Supreme Court has recognized four circumstances in which schools may regulate student speech.

1. speech that “materially and substantially” disrupts the work and discipline of the school.

2. vulgar or offensive speech.

3. “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” such as a school newspaper.

4. speech advocating illegal drug use, or the threat of the physical safety of students.

The Court found S.J.’s speech to fall within category #2, vulgar and offensive.  According to the Court, “when the speech reached other students at the school, it was brought to school officials' attention and some viewed it as not only boasting but possibly bullying to girls who did not make the team.”

The school was able to show that S.J.'s SnapChat video had the effect of materially and substantially disrupting the work and discipline of the cheer squad in a variety of ways. The video undermined the authority of the cheer coach and the goal of the cheer squad to improve the squad's reputation.  The district’s actions were not unreasonable.  The Court stated:

S.J. has no constitutional right to be a cheerleader and, although the school cannot infringe upon S.J.'s constitutional rights, the school can impose certain restrictions on her right to be on the squad. The school considers cheerleaders to be the face of Mountain Crest athletics. Because of their high profile, Mountain Crest holds cheerleaders to a higher academic and conduct standard than other athletes…Cases involving suspension are inapplicable to this case where S.J. was merely dismissed from an extracurricular activity. In addition, by deciding that she will not comply with the school's conditions for reinstatement, S.J. has voluntarily decided not to be part of the cheer squad.

To be entitled to a preliminary injunction while litigation is pending, a plaintiff must show a likelihood of success on the merits and irreparable harm.  S.J. failed in both regards and the Court gave a pretty good indication of how the case will end up when the litigation is concluded.

The case is Johnson v. Cache Cty. Sch. Dist., No. 1:18CV57DAK, 2018 WL 3242298, at *1–14 (D. Utah July 3, 2018)

DAWG BONE:   BEING NICE MATTERS.

This is my last week subbing for the Dawg.  Christine picks back up next week.  It’s been an honor!