B.L. v. Mahanoy Area Sch. Dist., CIVIL ACTION NO. 3:17–CV–1734

• Citation: 289 F.Supp.3d 607
• Decision Date: 05 October 2017
• Docket Number: CIVIL ACTION NO. 3:17–CV–1734
• Parties: B.L., a minor, BY her father, Lawrence LEVY, and her mother, Betty Lou Levy, Plaintiffs, v. MAHANOY AREA SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

289 F.Supp.3d 607

B.L., a minor, BY her father, Lawrence LEVY, and her mother, Betty Lou Levy, Plaintiffs,

v.MAHANOY AREA SCHOOL DISTRICT, Defendant.

CIVIL ACTION NO. 3:17–CV–1734

United States District Court, M.D. Pennsylvania.

Signed October 5, 2017

Mary Catherine Roper, Molly Tack–Hooper, American Civil Liberties Union of Pennsylvania, Philadelphia, PA, for Plaintiffs.

David William Brown, Michael I. Levin, Levin Legal Group PC, Huntingdon Valley, PA, John G. Dean, Elliott Greenleaf & Dean, Scranton, PA, for Defendant.

MEMORANDUM

A. Richard Caputo, United States District Judge

Presently before this Court is a Motion for a Preliminary Injunction (Doc. 2) filed by B.L., Lawrence Levy, and Betty Lou Levy (collectively "Plaintiffs"). This action stems from B.L.'s removal from Mahanoy Area High School's junior varsity cheerleading squad for her use of profanity off-campus on a weekend. Plaintiffs are able to establish that: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tip in their favor; and (4) an injunction is in the public interest. Specifically, Plaintiffs establish their likely success on the merits because the District is unable to punish its students for profane, off-campus speech. For these reasons, this Court will grant Plaintiffs' Motion for a Preliminary Injunction.

I. Background

A. Factual Background

Plaintiff B.L. ("Plaintiff"), is currently an honor student and sophomore at Mahanoy Area High School. B.L. began cheerleading in fifth grade, and has been on the junior varsity cheerleading squad at Mahanoy Area High School since she enrolled as a freshman. As a member of the cheerleading squad at the High School, Plaintiff attends practices at least twice a week, and cheers at football, basketball, and wrestling matches. Additionally, she has been tasked with raising money to support the financial needs of the District's cheerleading program.

The District's school board empowered the cheerleading coaches to adopt rules and regulations governing the conduct of students participating in the cheerleading program. In pertinent part, the rules developed by the squad's coaches state:

"Please have respect for your school, coaches, teachers, and other cheerleaders and teams. Remember, you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced, this includes foul language and inappropriate gestures .... There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet."

(Defs. Ex. 3 (emphasis added).)

On May 28, 2017, Plaintiff posted a "Snap" featuring a photo of her and a friend holding up their middle fingers with the text, "fuck school fuck softball fuck cheer fuck everything" superimposed on the image.¹ Plaintiff took the Snap at the Cocoa Hut—a local convenience store—on the weekend when she was not participating in any school activity. Notably, this Snap did not specifically mention the High School or picture the High School.² Further, the Snap was only shared with Plaintiff's friends³ on SnapChat, and thus was not available to the general public.

Five days after Plaintiff sent the Snap, on June 1, 2017, one of the cheerleading squad's coaches, Ms. Luchetta, pulled Plaintiff out of class to inform her that she was being dismissed from the cheerleading squad. At that time, Luchetta produced a printout of Plaintiff's Snap and told Plaintiff that the Snap was "disrespectful" to the coaches, the school, and the other cheerleaders.

Following Plaintiff's dismissal from the cheerleading squad, Plaintiff's parents made a number of attempts to get the District to reconsider their daughter's punishment. During these attempts to return to the cheerleading squad, Plaintiff was told that the school had the right to discipline her for "disrespecting the school," and that the coaches believed that her Snap was "demeaning to [the coach], the school, and the rest of the cheerleaders."

At the hearing before this Court, Luchetta testified that she suspended plaintiff from the cheerleading squad because of her use of profanity.

There is no question that the District knew the Snap was produced off of school property during the weekend when no school event was in progress.

B. Procedural Background

On September 25, 2017 Plaintiffs filed the instant Complaint against the Mahanoy Area School District. (Doc. 1.) Accompanying the Complaint was a Motion for a Temporary Restraining Order ("TRO") and Preliminary Injunction. (Doc. 2.) This Court granted Plaintiffs' Motion for a TRO at 11:05am on September 25, 2017, and scheduled a hearing on the Motion for a Preliminary Injunction ("hearing"). That hearing occurred on October 2, 2017 at 9:30am.

Plaintiffs' Motion for a Preliminary Injunction is ripe for review.

II. Legal Standard

" ‘A preliminary injunction is an extraordinary remedy never awarded as of right.’ " Groupe SEB USA, Inc. v. Euro–Pro Operating LLC , 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). "Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing that the plaintiff is entitled to such relief.’ " Id. (quoting Winter , 555 U.S. at 22, 129 S.Ct. 365 ). "A plaintiff seeking a preliminary injunction must establish that: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) that an injunction is in the public interest." Winter , 555 U.S. at 20, 129 S.Ct. 365. The "failure to establish any element ... renders a preliminary injunction inappropriate." NutraSweet Co. v. Vit–Mar Enters., Inc. , 176 F.3d 151, 153 (3d Cir. 1999) (citing Opticians Ass'n of Am. v. Indep. Opticians of Am. , 920 F.2d 187, 192 (3d Cir. 1990) ). Notably, the "movant bears the burden of showing that these four factors weigh in favor of granting the injunction." Ferring Pharms., Inc. v. Watson Pharms., Inc. , 765 F.3d 205, 210 (3d Cir. 2014) (citing Opticians , 920 F.2d at 192 ).

III. Discussion

A. Plaintiffs are Likely to Succeed on the Merits

Plaintiffs contend that this action is likely to succeed on the merits for two⁴ distinct reasons: (1) Schools cannot punish students for private, out-of-school speech that does not cause substantial, material disruption to school activities, and (2) the cheerleading rules are vague, overbroad, and give school officials an impermissible amount of discretion to censor student speech.⁵ On the other hand, the District has made the sweeping argument that "this is not a First Amendment case." But, the District has also argued that it has the authority to punish students for profane, out-of-school speech, and further that speech directed at the School District should be considered on-campus speech.

(1) The School District may not punish a student for profane speech generated out-of-school

Plaintiff first contends that this case is likely to succeed on the merits because the school may not punish students for private, out-of-school speech that does not cause a substantial, material disruption to school activities. This is correct.

As an initial matter, there is no question that the First Amendment limits that ability of a school to impose punishment for speech protected under the Amendment's ambit. As has been repeated a number of times since the Supreme Court decided Tinker v. Des Moines Indep. Sch. Dist. , 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Rather, the Court has held that schools may only⁶ limit speech or punish students for speech that is (1) "vulgar, lewd, profane, plainly offensive" or (2) "is reasonably expected to substantially disrupt the school.⁷ " Bethel School Dist. No. 403 v. Fraser , 478 U.S. 675, 686, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) ; Tinker , 393 U.S. at 514, 89 S.Ct. 733.

Notably, the decisions rendered by the Supreme Court in Tinker and Fraser dealt with speech made on a school's campus. While courts have allowed schools to punish a student for out-of-school speech that was reasonably expected to substantially disrupt the school, the Supreme Court has noted that schools have no power to punish "lewd or profane" speech—as described in Fraser —when it occurs outside of the school context. See Fraser , 478 U.S. at 688, 106 S.Ct. 3159 ("If [the student] had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate...."); Morse v. Frederick , 551 U.S. 393, 405, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007). In fact, the Third Circuit—in a case almost identical to the instant action—held that " Fraser does not apply to off-campus speech." J.S. v. Blue Mountain Sch. Dist. , 650 F.3d 915, 932 (3d Cir. 2011) (en banc); see also Layshock v. Hermitage Sch. Dist. , 650 F.3d 205 (3d Cir. 2011) (en banc) (noting that a principal could not punish a student for speech that was "degrading, demeaning, demoralizing, and shocking" because the speech was made online, out-of-school.). There, a School District suspended a student for creating an online profile that made fun of her school's principal. Id. at 920. The student created the online profile during the weekend, and on her home computer. Id. While the Third Circuit believed that the student's conduct could be construed as "lewd or profane," the school still violated the student's First Amendment right when it punished her because the speech was made off-campus. Id. at 932 ; see also Cohen v. Cal. , 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (noting that in a non-school setting, the state may not make a "single four-letter expletive a criminal offense."). Simply put, the ability of...