School Business Affairs January 2021 SCHOOL BUSINESS AFFAIRS | JANUARY 2021 33 LEGAL ISSUES The Supreme Court’s inaction on social media has resulted in conflicting judicial judgments throughout the nation. Student Speech, Social Media, and Extracurricular Activities By Charles J. Russo, J.D., Ed.D. I n the Third Circuit, consistent with its two earlier orders in favor of students who engaged in questionable behavior in Layshock ex rel. Layshock v. Hermit- age School District (2011, 2012) and J.S. ex rel. Snyder v. Blue Mountain School District (2011, 2012), reached a similar outcome in a recent dispute over a student’s (mis)use of social media. In what it described as a case of first impression, meaning it was the first time it addressed the issue, the Third Circuit court ruled in favor of a high school student in Pennsylvania who was suspended from the cheerleading team for a year after she posted a profanity-laden statement on her Snapchat account and a photograph of herself and a friend making an obscene gesture after she failed to qualify for the varsity cheerleading team ( Levy v. Mahanoy Area School Dis- trict 2020). The Third Circuit acknowledged that according to the Personal Conduct Rule in the student handbook, “[p]articipation on an athletic team or cheerleading squad in the Mahanoy Area School District is a privi- lege” ( Mahanoy 2020 p. 193) but ignored its own precedent from Palmer v. Merluzzi (1989) that participating in extracurricular activities is a privilege, not a right, in affirm- ing that school officials in Mahanoy violated the student’s First Amendment rights in sus- pending her from the team. Facts and Judicial History In her first year of high school, B.L. joined the junior varsity (JV) cheerleading team. In May of that year, before being able to try out for the varsity, B.L. and her mother read, signed, and voluntarily agreed to abide by her school’s cheerleading rules, which required students to “have respect for your school, coaches, teachers, other cheerleaders and teams” and declared that “[g]ood sportsmanship will be enforced, this includes foul language and inappropriate gestures.” ( Mahanoy 2019, p. 432) The rules also included the statement that “[t]here will be no toleration of any negative informa- tion regarding cheerleading, cheerleaders, or coaches placed on the internet” ( Mahanoy 2019, p. 432). Because she did not do well in varsity team tryouts, B.L. returned to the JV squad. Upset and frustrated over the tryout and being on the JV team, unhappy about her position on a local softball team, and wor- ried about upcoming examinations, B.L. met a friend on a Saturday at a local off-campus store ( Mahanoy 2020, p. 175). At the store, B.L. “took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story. The snap was vis- ible to about 250 ‘friends,’ many of whom were MAHS [district] students and some of whom were cheerleaders, and it was accom- panied by a puerile caption: ‘F--- school f--- softball f--- cheer f--- everything’” ( Mahanoy 2020, p. 175). When coaches learned of B.L.’s “Snap,” they determined that it violated both school and team rules that she and her mother will- ingly signed before trying out for cheerlead- ing, particularly the rule not to use “foul language and inappropriate gestures” and to refrain from sharing “negative informa- tion regarding cheerleading, cheerleaders, or coaches . . . on the internet” and another rule to “conduct themselves in such a way that the image of the Mahanoy School Dis- trict would not be tarnished in any manner” ( Mahanoy 2020, p. 176). Consequently, coaches removed B.L. from the squad for a year but “would not have suspended B.L. from the team if her Snaps BBOURDAGES/STOCK.ADOBE.COM