Might be a good time to look over that cheerleader constitution.

The cheerleader sponsors at San Benito High School dismissed a girl from the squad because of the ten “inappropriate” posts the girl put on social media.  The girl sued the sponsors and the principal, who upheld the decision to dismiss the girl from the squad, claiming that her First Amendment rights had been trampled upon. The federal court held that the school may very well have violated the student’s free speech rights, but that the individual defendants were entitled to qualified immunity. The law about this is too murky.  The sponsors and principal may have violated the girl’s rights, but those rights were not “clearly established.”

Although the case was dismissed, the ruling should make all cheerleader sponsors review their constitution and scrub it of terms that are undefined or overly vague. In particular, look over any provisions that apply to off campus, non-school related communication.

In this case the social media posts and “likes” were quoted in the court’s opinion and I’m not going to celebrate them with repetition here.  Suffice it to say they were vulgar and included many common words referring to body parts, female canines, manure and sexual intercourse.  I’m sure you can imagine.

However, all of this took place online and off campus.  Can the school discipline a student for such things?  You may recall that the 5th Circuit issued a major ruling about off campus speech by students and held that the student in that case could be disciplined, Bell v. Itawamba County School Board, 799 F.3d 379 (5th Cir. 2015).  But that case involved threats and harassment of school staff.  The student in San Benito did not threaten anyone and did not harass anyone. She just used vulgar and crude language.  The court concluded:

In summary, Plaintiff’s social media posts, even if designated as “lewd,” which originated online, off-campus, and outside of the school context—are not subject to Individual Defendants’ authority under Fraser [a SCOTUS case holding that students may be disciplined for vulgar language at school].

The court seemed troubled by the vague and subjective terms in the cheerleader constitution, such as “inappropriate” and the fact that “likes” were treated the same as posts, even though the constitution did not make that clear.  So it might be a good idea to review your cheerleader constitution, and other rules for various extracurricular activities.  We can help you with that.  Give us a call at Walsh Gallegos and we’ll be happy to help. Preventing a lawsuit is much less expensive than defending one.

The case is Longoria v. San Benito CISD, decided by the federal court for the Southern District of Texas on October 31, 2018.  We found it at 2018 WL 5629941. I’m pleased to let you know that the lawyers who successfully argued for qualified immunity in this case were Mike Saldana, Leandra Ortiz and Priscilla de la Garza  from our law firm’s Rio Grande Valley office, with able assistance from Katie Payne in our San Antonio office.