High School Athletes Deserve Free Speech, Too - Fordham Intellectual Property, Media & Entertainment Law Journal
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High School Athletes Deserve Free Speech, Too

High School Athletes Deserve Free Speech, Too

If you are a high school athlete looking to get suspended from your sports team, a Snapchat captioned, “fuck school fuck softball fuck cheer fuck everything” should get the job done.1

The Supreme Court has distinguished student athletes from non-athlete students in the context of the Fourth Amendment.2 The Court did so by determining that teams can randomly drug-test their athletes.3 The Court reasoned that by trying out for a team, students “voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.”4 A Pennsylvania district court recently addressed this distinction between student athletes and non-athlete students in the context of the First Amendment.5

First, the district court discussed the rights of high school students generally. Public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”6 For speech to be regulated, it must “materially and substantially disrupt the work and discipline of the school.”7 The Supreme Court first applied this standard in 1969 when students wore black armbands to school to protest the Vietnam War.8 The Court determined that the school could not ban wearing the armbands since the bands did not “substantially disrupt” school proceedings.9 Since Tinker, the Supreme Court has recognized modifications to this standard.

The Court first modified Tinker in 1986. In Bethel School District v. Fraser, the Court permitted suspension when a student used “vulgar” words in his speech at a school assembly.10 The Court reasoned that this speech “undermine[d] the school’s basic educational mission.”11 In 1988, the Court permitted suspension when speech at a school-sponsored event interfered with the school’s “legitimate pedagogical concerns.”12 Finally, in 2007, the Court categorically permitted suspension when a student promoted drug use at a school-sponsored event.13

Earlier this year, the District Court for the Middle District of Pennsylvania applied the Tinker standard to high school athletes.14 The Mahanoy Area High School suspended a cheerleader from the cheer team for a year after she posted a Snapchat with her middle finger raised and the caption “fuck school fuck softball fuck cheer fuck everything.”15 The court determined that the off-campus Snapchat did not substantially disrupt school or team proceedings, and therefore is protected under the First Amendment.16 The court conceded that regulation would likely be appropriate if the off-campus Snapchat had significantly disrupted the team’s function or conflicted with the coach’s pedagogical concerns.17 This decision rejects the idea that student athletes’ speech is subject to increased regulation.18 It holds student athletes to the same Tinker standards as non-athlete students.19

The Mahanoy Area High School District disagreed with that determination and appealed the decision. The school district’s appellant brief addresses how it believes courts should apply the Tinker standard to student athletes’ off-campus speech.20 Among other arguments, the school district emphasizes that extracurriculars are a privilege, not a right21, and thus can be regulated more liberally than regular academic activity.22 Accordingly, the school district asserts that the district court’s decision extends Tinker further than the Court intended.23

The parties filed their briefs and are awaiting a decision from the Third Circuit. Hopefully, that decision will clarify the First Amendment rights of student athletes.


  1. B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429, 433 (M.D. Pa. 2019).

  2. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657 (1995).

  3. See Id. at 666.

  4. Id. at 657.

  5. See generally B.L., 376 F. Supp. 3d at 429.

  6. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

  7. Id. at 513.

  8. See Id. at 504.

  9. Id. at 513.

  10. 478 U.S. 675, 685 (1986).

  11. Id. at 685.

  12. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

  13. See Morse v. Frederick, 551 U.S. 393, 410 (2007).

  14. See generally B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429, 433 (M.D. Pa. 2019).

  15. Id. at 433.

  16. See Id. at 444.

  17. See Id. at 443.

  18. See Id. at 442.

  19. See B.L. v. Mahanoy Area Sch. Dist., 376 F. Supp. 3d 429, 442 (M.D. Pa. 2019).

  20. See Brief for Appellant at 19, B.L. v. Mahanoy Area Sch. Dist. (No. 19-1842).

  21. See Id. at 22.

  22. See Reply Brief for Appellant at 11-12, B.L. v. Mahanoy Area Sch. Dist. (No. 19-1842).

  23. See Brief for Appellant at 19.

Kirsten Flicker

Kirsten Flicker is a second-year J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. She holds a B.A. in History from New York University.