The Other Shadow Docket* Revisited: Hidden Contract Issues in Mahanoy Area School District v. B.L. (the Cheerleader Case)

A few months ago, I posted about  Jamal Greene's How Rights Went Wrong and a case decided during the last SCOTUS term, Fulton v. City of Philadelphia.  As I pointed out in the last post, one of the key points that  Professor Greene (left) makes is that our jurisprudence elevates certain rights as "fundamental," and courts protect those rights zealously through heightened scrutiny.  Other rights, since 1937 or thereabouts, have been left nearly entirely unprotected.  Greene illustrates the phenomenon and the damage it has done to our social fabric with myriad examples.  Contracts rights, protected in the Lochner Era, are largely disregarded today.  Neither Professor Greene nor I advocate a return to Lochner.   Indeed, Professor Greene regards Justice Harlan's Lochner dissent with wistful admiration, as a path not taken.  He has persuaded me that courts ought to engage in less rights fundamentalism and more rights negotiation and mediation.  

In my last post, I indicated that if the Court had been more interested in contracts rights and less committed to a winner-take-all strategy in which Free Exercise Rights trump all, Fulton could have come out differently, and I think better.  Today, I want to make the argument that the Court should have at least considered contracts law before siding with the foul-mouthed cheerleader in Mahanoy.  

A quick review of the facts: B.L. was on the junior varsity team at Mahanoy in her freshman year.  She tried out for varsity but did not make it.  Upset about that and other things, she expressed her outrage, off campus and over the weekend, on Snapchat.  The Snap that got her in trouble was a picture of her and a friend giving the camera the finger.  The text, which is edited here, because this is a family-friendly blog (this blog is #f-faf), "f school f softball f cheer f everything."  She shared the Snap with 250 friends, many of whom attended her school, and some of whom were cheerleaders. 

Another cheerleader, who happened to be the daughter of one of the coaches, shared the Snap with her mother.  Many cheerleaders were upset by the Snap, and not about its lack of punctuation.  They complained to the coaches saying, in effect, "You're not going to let her get away with this, are you?"  The coaches did not let B.L. get a way with it.  They suspended her from the cheer team for one year.  B.L.'s parents protested their decision, but the coaches' superiors approved their decision at every level -- athletic director, principal, superintendent, school board.  

But the ACLU took up B.L.'s case and got an order from the district court preliminarily enjoining the School District from suspending B.L. or indeed punishing her in any way for exercising her constitutional right of free speech.  That injunction was upheld and made permanent in the District Court, the Third Circuit Court of Appeals, and the Supreme Court, 8-1, with Justice Thomas alone in dissent.  Justice Thomas, you are not alone!

You wouldn't know it to read the three opinions in Mahanoy, but before B.L. tried out for the varsity team, she and her mother read and agreed to the team rules by signing the appropriate forms.  Those rules provide, among other things: “There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”  The District Court, perhaps incoherently, held that the rules were neither vague nor overbroad, but they were unconstitutional as applied to B.L.'s Snap.  The Third Circuit went farther, holding that schools cannot discipline students for off-campus speech.  The Supreme Court, per Justice Breyer, rejected the Third Circuit's categorical ruling but found that B.L. had been engaged in constitutionally protected speech and had been unconstitutionally disciplined for criticizing her coaches.  

Justice Breyer, I defend your right to retire when you are good and ready, but on this issue we must part company.  She was not disciplined for criticizing her coaches.  She wasn't criticizing anyone.  She did not believe the words she wrote.  She cried when she was suspended, and when asked in deposition why she cried, she said it was because "I really enjoy cheerleading."  The Tinkers never apologized for wearing the armbands that led to their celebrated case.  They never tearfully admitted that they really enjoyed the Vietnam War.  B.L. was punished because she promised to behave a certain way in order to qualify to be a cheerleader.  She broke that promise, and on this blog, there are consequences when people break their promises.

B.L. was disciplined for violating team rules against posting negative comments on the Internet about cheerleading.  The School District felt confident that B.L.'s speech was unprotected because the Court had ruled in a prior case (Fraser) that profane speech is unprotected in the school context.  True, Fraser was on school property at the time he delivered his speech, but technically, Frederick of Morse v. Frederick was off campus when he unfurled his immortal BONG HiTS 4 JESUS banner.  And we are all eternally grateful to him. But the Supreme Court upheld his absurd 10-day suspension (Fraser got three, reduced to two for some reason), because, as Mr. Mackey would say, "Drugs are bad, mmkay?"

Look.  As co-blogger Nancy Kim might point out, one might argue that, given the context, B.L. and her mother did not give meaningful consent when they signed the school's forms.  Maybe there are some rights you cannot contract away, but there are lots of contexts in which people's employment limits their right to speak to the constitutional max.  If we don't want public school children to surrender their constitutional rights at the schoolhouse gate, perhaps we shouldn't be searching their lockers or subjecting them to random drug tests so that they can play the saxophone in band.  In any case, none of these arguments against enforcing the school's agreement with B.L. were considered in the Supreme Court because First Amendment rights matter to that Court, and in contexts like these, contracts rights don't matter at all.  But in a world in which we balanced and mediated rights. cheerleaders could be disciplined in reasonable ways for violating team rules, and courts wouldn't need to get involved absent due process violations which clearly were not presented in B.L.'s case.

Jamal Greene briefly discusses this case and Fulton in an episode of the wonderful Strict Scrutiny podcast devoted to his book.  He notes that Justice Breyer has long been committed to a more balanced approach to rights than most of his colleagues on the Court, and he seems to think that Breyer struck the right balance here.  I share Professor Greene's general assessment of Justice Breyer's approach to rights, but I don't see much balancing in this case.  However, Professor Greene concedes that a balancing approach to rights does not mean that we will always agree with the outcome.  Still,  Professor Greene divides the free speech in school cases into those involving "knuckleheads" and cases involving serious protest speech.  He thinks B.L. was protesting her school's policies, and I can see how he would so conclude based on the Court's rendition of the case.  But it just ain't so.  She has far more in common with the  "knuckleheads" than she does with the Tinkers.  I hope that Professor Greene and I can agree that if students (or their parents) were not encouraged to think of themselves as endowed with unassailable fundamental rights, most if not all of these cases (Tinker needed to be heard) would disappear.  B.L.'s parents would press and lobby.  Eventually, the school would have reduced the suspension from one year to three games, and everyone would have moved on. Or the school would have insisted on its suspension, and everyone would have moved on.

*The Shadow Docket is a phrase coined by Will Baude and explored at great length by Steve Vladeck.  They are two of the smartest people writing about constitutional law  and related topics today, and I recommend all of their writings and doings.  Both of them have excellent podcasts, and Will Baude explains the shadow docket on the first episode of Divided Argument, which he co-hosts with Dan Epps.