What cheerleaders say on Twitter

Social media has become a pit for the unwary.  Pretty well every comment or ‘like’ you hand out has the potential to come back and bite you, either in your career or in the form of a headline.  Or in the case of a cheerleader, in a captaincy.

San Benito High School in Texas seems to have a strong and successful cheer team.  In early 2017 a young lady identified as “ML” was appointed as head varsity cheerleader.  A few weeks later, she was called to a meeting with the team coaches where she was stripped of her post and dropped from the team.  The coaches had found her Twitter feed, which they considered to have been “inappropriate”.  In particular, they were alarmed that she had liked posts created by others saying –

  • “Imma show my mom all the snaps2 from girls partying for spring break so she can appreciate her lame ass daughter some more,”
  • a tweet about braiding hair containing the acronym “lmao,”
  • a tweet containing an image of a text-message conversation between a mother and a daughter, in which the word “fuck” is used twice
  • “I love kissing lmao,”
  • “i [sic] don’t fuck with people who lowkey try to compete with/ out do me,”
  • “I fucking love texas [sic] man, it’s so beautiful and just overall great! Why would anyone want to leave Texas[?],”
  • “I love her [third-party Twitter user] I FUCKING LOVE YOU SO MUCH AND YOU DONT [sic] EVEN KNOW IT LIKE BITCH I HOPE YOU DO GREAT SHIT IN LIFE I BELIEVE IN YOU,”
  • a tweet from a Twitter account entitled “Horny Facts™,” which states, “bitch don’t touch my . . .”4

In addition, she had retweeted a post from “Bitch Code” and replied in the affirmative to the question “Did pope split you in half??”

The plaintiff, by her mother, brought proceedings alleging a violation of her free speech rights.  Statute 42 USC §1983 relevantly states that –

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects … any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….

The claim was dismissed at first instance on the grounds that the defendants were entitled to a qualified immunity.  The plaintiff appealed to the 5th US Circuit Court of Appeals.

San Benito HS
Image from here

The Court noted that a defendant will be entitled to qualified immunity where their action “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known”.  Immunity will be made out where there has been insufficient case law to warn a defendant that their acts violate the Bill of Rights.

The Court then proceeded to review the available case law on the free-speech rights of school pupils.  It concluded that at the time of ML’s dismissal, the case law on out-of-school speech had not established clear boundaries.  The Court took the opportunity to sum up the available case law in the hope of offering guidance to school administrators –

First, nothing in our precedent allows a school to discipline nonthreatening off-campus speech simply because an administrator considers it “offensive, harassing, or disruptive.” …. Second, it is “indisputable” that non-threatening student expression is entitled to First Amendment protection, even though the extent of that protection may be “diminished” if the speech is “composed by a student on-campus, or purposefully brought onto a school campus.” …. And finally, as a general rule, speech that the speaker does not intend to reach the school community remains outside the reach of school officials. ….  Because a school’s authority to discipline 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 schoolbased discipline.

The court declined to say whether the case at hand actually had breached these principles.  It concluded that “there was no clearly-established law that placed M.L.’s rights beyond debate at the time of” her dismissal.  As such, the claim of immunity was made out.  The appeal was dismissed.

Longoria v San Benito Independent Consolidated School District (US Ct of App. 5th Cir., King, Higginson and Duncan JJ, 4 November 2019, unreported)

Spady v Bethlehem Area School District (2014) H&FLR 2014-48

Mica Spady v Bethlehem Area School District and Ors (2014) H&FLR 2014-48

United States District Court (Eastern District of Pennsylvania)

30 July 2014

Coram: Slomsky J

Appearing for the Plaintiff: Richard J. Orloski and Steven C. Ameche (of Orloski Law Firm)
Appearing for the Defendants: Paul G. Lees (of Marshall, Dennehey, Warner, Coleman & Goggin)

Catchwords: Pennsylvania – school – physical education – death – constitutional violations – officials immunity – exceptions – training

Facts: Juanya Spady was a student at Liberty High School, operated by the defendant. On 2 December 2010 he attended a swimming class as part of Physical Education (PE). During the class he complained to the teacher of feeling unwell but finished the lesson. The evidence was conflicted as to whether the teacher compelled him to complete the lesson. During his next class (which was in a classroom) he collapsed and had difficulty breathing. First aid was administered, including CPR and use of an automated external defibrillator. An ambulance was called, but Master Spady died in hospital later that day. The cause of death was disputed, although one theory alleged toxicity caused by swimming pool chlorine.

The deceased’s mother commenced proceedings on behalf of his estate under 42 U.S. Code §1983, alleging breaches of the deceased’s constitutional rights to personal security, life, liberty and freedom from state-created dangers and unconscionable arbitrary government action. She also brought claims in State law for ‘wrongful death’ as well as a survival action on behalf of his estate. The defendants sought summary dismissal of the constitutional claims.

Held: Rejecting the defendant’s application, that –

1. The State may be liable where it has created or exacerbated a danger which causes a plaintiff to be deprived of their Fourteenth Amendment rights. For the claim to succeed, the plaintiff must show that the harm alleged caused was foreseeable and fairly direct, that a State officer was culpable to a degree that shocks the conscience, that the plaintiff (or a person in the plaintiff’s position) was a foreseeable victim of the defendant’s actions, and that the officer affirmatively used their authority so to endanger (or worsen the danger) to the plaintiff

Morrow v Balaski, 719 F.3d 160 (3d Cir. 2013)

2. Government officials are not liable for civil damages, unless the plaintiff can establish that the official violated a statutory or constitutional right which was clearly established at the time of the alleged wrongful act. For the immunity to be lost, the unlawfulness of the official’s actions should have been apparent to a reasonable official.

Wood v Moss, 572 US __ (2014); Halsey v Pfeiffer, No. 13-1549, 2014 WL 1622769 (3d Cir. Apr. 24, 2014)

3. The School district can be liable under §1983 where it had a policy or custom which lead to the alleged constitutional violation. Where the policy was a failure to train an employee, the failure must amount to deliberate indifference (in the form of disregarding a known or obvious consequence*) to the rights of people who will deal with the employee and also have in fact caused the violation.

Natale v Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003); Thomas v Cumberland County, 749 F.3d 217 (3d Cir. 2014)

Judgment

The Court’s judgment is available here.
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* Cf ‘gross negligence’: Stephen Tuck, ‘A Recent Decision of the Florida DCA on Gradations of Negligence‘, Amer. Bar Assoc. Commercial Transp. Litigation Comm. News 10 (Winter 2014).

Abel Limones Sr & Ors v School Board of Lee County (2013) H&FLR 2014-6

Abel Limones Sr & Ors v School Board of Lee County (2013) H&FLR 2014-6

Second District Court of Appeal (Florida)

6 February 2013

Coram: Silberman CJ, Casanueva and Black JJ

Appearing for the Plaintiff: Matthew Moore and David Rash (inst. Alters Law Firm)

Appearing for the Defendant: J. Matthew Belcastro and Traci T. McKee (inst. Henderson, Franklin, Starnes & Holt)

Catchwords: Florida – soccer – high school – collapse of player – automated external defibrillator – brain damage – negligence

Facts: Abel Limones Jr was a member of the East Lee County High School soccer team in a match against the team of Riverdale High School on the evening of 13 November 2008. During the game he collapsed on the field , following which he rapidly lost consciousness, stopped breathing and apparently ceased to have a pulse. Emergency services were called and cardio-pulmonary resuscitation was commenced. There was evidence that the coach of the East Lee County team called for an automated external defibrillator (AED) and that such a device was available at the ground. About 26 minutes after collapsing, Limones Jr was resuscitated by emergency services but suffered catastrophic brain damage.

The plaintiffs (Limones Jr and his parents) sought compensation based on a common law duty by the defendant to provide a reasonably safe environment and based on a failure to comply with §1006.165 of Florida Statutes 2008. The action was dismissed on the basis that there was no common law duty to provide or use an AED and that the claimed section did not establish a cause of action in negligence. The plaintiffs appealed.

Held: Dismissing the appeal –

(1) In relation to athletic activities, a school’s duty includes doing what a reasonably prudent person would do in the circumstances to (a) provide adequate instruction; (b) supply suitable equipment; (c) select and match competitors; (d) supervise; and (e) should injury occur, take appropriate steps to prevent aggravation of the injury.

(2) A school is not obliged at common law to provide medical care or rescue, including by means of an AED.

LA Fitness International LLC v Mayer, 980 So. 2d 550 (Fla. 4th DCA, 2008), followed.

The Court declined to decide whether §1006.165 of Florida Statutes 2008 created a private cause of action in negligence.

Judgment

The Court’s judgment is available here.  Note that an appeal will be considered in the matter by the Supreme Court of Florida.