When the Supreme Court overturned Brandi’s suspension from the cheerleading squad, we knew it was just a matter of time before challenges to extracurricular codes of conduct blossomed like bluebonnets in March.  Sure enough, it did not take long.  A federal court in Missouri has upheld the 45-day suspension from volleyball of an 8^th grader based on evidence of her alcohol consumption, which the student herself recorded on Snapchat.

This case had some similarities to Brandi’s.  Let’s compare:

But that’s about where the similarities ended.  As the court pointed out, Brandi was suspended for what she said, which is what the First Amendment is all about.  The girl in Missouri was suspended for what she did.  The First Amendment does not protect conduct, unless that conduct is essentially an expressive act that sends a particular, and understandable message.  In this opinion the court notes several examples of expressive conduct that warrant constitutional protection, including Mary Beth Tinker’s wearing of a black armband in protest of the War in Vietnam.

The court summed up the important distinction:

The analogy between [Brandi’s] Snapshot photos and N.C.’s Snapchat video is a faulty one.  [Brandi’s] Snapchat photos were pure speech.  In comparison, North Platte is allegedly regulating a videorecording of N.C. consuming alcohol.  When a minor consumes alcohol, she is engaging in an illegal act, not pure speech. 

The fact that N.C. was doing something that is illegal made it easier for the court to confirm that the school district had a legitimate interest in regulating this conduct, even off campus on a Sunday.  But that wasn’t the decisive factor here. The decisive factor was that drinking alcohol is conduct, as opposed to speech. 

As is often true in school law cases the story behind the case would make for a good Made-for-TV Movie.  A 13-year old girl videos herself drinking alcohol in her home, and is found later that night by her mother, “incoherent and on the verge of losing consciousness.”  Fortunately, mom got her to the hospital where she was diagnosed with acute alcohol poisoning.  Apparently she recovered quickly, as she only missed one day of school.

But mom let her Snapchat friends have it:

Hello…This is [N.C.’s] mom.  I wanted to let you all know that she is still alive.  In her SC video she posted earlier—which some of you thought was funny (I’ve read allllll of the messages)—you actually witnessed her having a life-threatening medical emergency.

And for those of you who may have suggested, encouraged, dared, etc. for her to do anything, just know I know who you are.

The case is Cheadle v. North Platte R-1 School District, decided by the federal court for the Western District of Missouri on August 16, 2021.  We found it at 2021 WL 3621877. 

Our firm is doing a webinar to follow up on the Supreme Court’s decision in Brandi’s case—B.L. v. Mahanoy Area School District on September 14th.  Haley Turner and Wesley Nute will be leading the discussion and I’m sure they will be talking about this case. Sign up at info@wabsa.com. 

DAWG BONE: LOOKS LIKE PROHIBITING ALCOHOL CONSUMPTION IN EXTRACURRICULAR CODES OF CONDUCT WILL SURVIVE.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: “trigger date”….