What to do with extracurricular codes of conduct after Mahanoy?

In its recent decision about a cheerleader and her F-bomb laden Snapchat posts the Supreme Court said very little about the fact that the student had signed on for an extracurricular activity and thereby agreed to a stricter set of rules.  This is disappointing. We were hoping that the Court would take that factor into account, and give us some guidance as to what is OK and not OK in a set of rules for extracurricular activities.  Since the decision is silent on that point, coaches and sponsors are confused and a bit anxious about what rules they can apply.  Today I offer some points to consider. 

First, the Court acknowledged that team cohesion was a legitimate concern.  That should mean that schools retain the power to discipline students for activities they engage in off campus that have a notable adverse impact on the team as a whole.  In this particular case the Court just didn’t see any major impact from this very brief social media temper tantrum. 

Second, all parties to this case, and the Court, seem to assume that schools can discipline students for actual threats, harassment or bullying, even when it occurs off campus.  So rules that prohibit students from bullying, threatening or harassing other team members and coaches should be OK.

Third, since the Supreme Court did not directly address the issue, we turn to 5th Circuit precedent.  San Benito CISD removed a cheerleader from the squad based on a Twitter post that the district deemed to be inappropriate.  The student sued, alleging an infringement of free speech rights, and the case advanced to the 5th Circuit.  Noting how murky the legal standards are in this area, the court offered some guidance:

  1. The fact that the student and her mother signed off on a Cheerleader Constitution that put them on notice that social media activity would be monitored, and might be penalized, was a factor here.  So it’s a good idea for schools to continue to require this.
  2. The fact that the Twitter account identified the student as a San Benito cheerleader mattered also.  The Twitter post affected the reputation of the school.
  3. “Most notably” the court observed, the girl was not suspended from school, but only from an extracurricular activity.
  4. School officials can’t discipline a student for off-campus speech simply because they find it offensive. 
  5. As a general rule, the student’s intent for the speech to reach the school community is important.  The court made this observation and then followed it by noting how the Internet muddies the water. Here’s the Key Quote:

Because a school’s authority to discipline a student speech derives from the unique needs and goals of the school setting, a student must direct her speech towards the school community in order to trigger school-based discipline.  We acknowledge, however, that the “pervasive and omnipresent nature of the Internet” raises difficult questions about what it means for a student using social media to direct her speech towards the school community.

One more point: the use of vulgar words in ways that do not involve direct harassment of an individual is probably not a firm basis for disciplinary action.  I recall hearing an interview with a  major league baseball umpire about why ballplayers get ejected from the game. The interview went kinda like this:

Reporter: I image you hear a lot of angry words when ballplayers argue over a call.  Probably a lot of cussing.

Umpire: Oh yes.  And we put up with almost all of that.  But if they utter the magic word, they are out. 

Reporter: What’s the magic word?

Umpire: “You.”


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

Tomorrow: how confidential is the video footage from that camera in the classroom?