B.L. v. Mahanoy Area School District

Filing 12

MEMORANDUM (Order to follow as separate docket entry) re: motion for preliminary injunction. Signed by Honorable A. Richard Caputo on 10/5/17. (dw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
B.L. a minor, by her father, LAWRENCE
LEVY, and her mother, BETTY LOU
LEVY,

CIVIL ACTION NO. 3:17-CV-1734
(JUDGE CAPUTO)

Plaintiffs,
v.
MAHANOY AREA SCHOOL DISTRICT,
Defendant.
MEMORANDUM
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
1

A “Snap” is a digital image that may be accompanied by text sent through
an application developed by the company, SnapChat. The SnapChat
application is available on smart phones and is unique because it only
allows users to send “Snaps” to specific individuals for a short amount of
time (generally under 10 seconds). Notably, a “Snap” is self-deleting. After
an image is sent, users may not access it again.

2

Not only was the High School not directly pictured, but the two students
pictured were not wearing their High School uniforms or any apparel
containing the School’s insignia. Put simply, there is no explicit reference
to the High School in the Snap.

3

It is not clear exactly how many people had access to this Snap. However,
Plaintiff B.L. suggested during her testimony at the Preliminary Injunction
hearing that the Snap could have reached roughly 250 individuals.
2

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 (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). “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
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equities tips in his favor; and (4) that an injunction is in the public interest.” Winter, 555
U.S. at 20. The “failure to establish any element . . . renders a preliminary injunction
inappropriate.” NutraSweet Co. v. Vit-Mart 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.

4

While Plaintiffs’ Brief in Support of their Motion for a Preliminary Injunction
contains three distinct grounds for supporting their position, Plaintiffs
abandoned one during the hearing: schools lack the authority to punish
students under a policy that discriminates against alternate viewpoints. In
fact, Plaintiffs’ counsel noted at the hearing that this case was now solely
about the District’s censure of profanity as opposed to viewpoint
discrimination.

5

This Court will not address Plaintiffs’ second argument because the grant
of preliminary relief can be supported solely on the finding that the School
District violated Plaintiff B.L.’s First Amendment right when it punished her
for profane speech that originated outside of school. Further, this Court
remains unconvinced that the policy is in fact void-for-vagueness or
unconstitutionally overbroad.
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(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 (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 (1986); Tinker, 393 U.S.
at 514.
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
6

Notably, the Supreme Court has provided other scenarios in which a
school may limit student speech, but the two types of speech identified
are the only two relevant to the instant matter. See, e.g., Hazelwood Sch.
Dist. v. Kuhlmeier, 484 U.S. 260, 262-64 (1988) (allowing a principal to
withhold two pages of a high school student-run newspaper from
publication because schools have greater control over speech that
appears school-sponsored.).

7

The District has made no argument that the Snap sent by Plaintiff B.L.
would substantially disrupt the operation of the school, instead the District
solely relies upon Plaintiff’s use of profanity. Therefore, the District will
have to rest on the argument that she may be punished for the content of
her Snap under Fraser.
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profane” speech–as described in Fraser–when it occurs outside of the school context. See
Fraser, 478 U.S. at 688 (“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
(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 (1971) (noting that in a nonschool setting, the state may not make a “single four-letter expletive a criminal offense.”).
Simply put, the ability of a school to punish lewd or profane speech disappears once a
student exits school grounds.
Here, the conduct of Plaintiff directly parallels the conduct of the Plaintiff in J.S. v.
Blue Mountain Sch. Dist. (“Blue Mountain”); both students created content8 that was

8

It is important to note that the content in Blue Mountain was substantially
more explicit than in the instant matter. In Blue Mountain the online profile
created by the student accused her principal of having sex in his office,
hitting on students, and being a “sex addict.” Additionally, the student in
Blue Mountain specifically named and personally attacked members of
the school’s staff and their families. It is this speech that was protected by
the Third Circuit because it originated outside of the control of the school
district. In comparison, here, the Plaintiff made a generic statement: “fuck
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distributed through use of the internet during the weekend, and on a device that was not
owned or controlled by the school district. Additionally, neither student was on school
property when the speech was generated. As such, the same rule that prevented the school
district from levying punishment in Blue Mountain should be restated here: a student’s
potentially lewd or profane speech created off-campus must not subject that student to
punishment by a public school district. It is important to note that the cheerleading coach,
who was in part responsible for the discipline of Plaintiff, testified that discipline was
imposed because of Plaintiff’s use of profanity.
While this Court believes the Third Circuit has made clear the limits placed on a
School District seeking to restrict a student’s out-of-school speech, Defendant seeks to
have this Court hold that a student may be punished for out-of-school speech so long as
the punishment does not encroach on what the District refers to as a “protected property
interest.” In other words, the District can levy any punishment it chooses so long as they do
not suspend or expel a student.9 As the District’s counsel made clear at the hearing, such
holding would mean that a student could be barred from an extracurricular activity if they

school fuck softball fuck cheer fuck everything.”
9

The District principally relies on a single Third Circuit case to support its
proposition: Blasi v. Pen Argul Area Sch. Dist., 512 Fed. App’x 173 (3d
Cir. 2013). However, that case is distinguishable from the instant case for
a number of reasons. There, a father was banned from a single basketball
game taking place on school grounds after he sent 17 “scathing and
threatening” emails to coaches of the school’s basketball team. Thus, a
student’s out-of-school speech was not at issue in Blasi. Second, the
content of the emails in Blasi is drastically different than the content of the
Snap at issue here. As the Blasi Court noted, the emails could properly
invoke the Tinker doctrine because the threatening nature of the emails
could have lead a reasonable person to believe disruption of the school’s
operation may follow. But here, the District has already admitted that B.L
was only punished because of the profanity contained within her Snap,
not because they had a reasonable fear of disruption. Finally, in Blasi the
emails were directed at a specific individual at the school. Remember,
B.L.’s Snap was sent to friends on the weekend and was deleted before
school was ever in session.
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were at home with friends and uttered a profanity that was subsequently reported to the
school. In essence, counsel suggests interpreting this Circuit’s jurisprudence to allow school
children to serve as Thought Police–reporting every profanity uttered–for the District. Such
construction is “unseemly and dangerous.” Layshock, 650 F.3d at 216.
The Third Circuit has not offered a separate standard to analyze student speech in
cases where the punishment was removal from an extracurricular. In fact, when presented
with cases where students were removed from an extracurricular due to their speech, the
Third Circuit has commingled such punishment with a student’s suspension or expulsion.
See, e.g., id. at 210, 212-14, 216 (finding a student’s First Amendment right was violated
when a school district imposed punishment that included suspension and a ban from
extracurricular activities due to the student’s out-of-school speech) (“It would be an
unseemly and dangerous precedent to allow the state, in the guise of school authorities, to
reach into a child's home and control his/her actions there to the same extent that it can
control that child when he/she participates in school sponsored activities.”(emphasis
added)); B.H. v. Easton Area Sch. Dist., 725 F.3d 293, 300 (3d Cir. 2013) (applying both
Fraser and Tinker to find that a student’s First Amendment right was violated when she was
punished with a one-and-a-half day in-school suspension, and a ban from at least one
extracurricular activity); see also Tinker, 393 U.S. at 512-14 (“A student's rights, therefore,
do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing
field, or on the campus during the authorized hours, he may express his opinions, even on
controversial subjects.”). This Court will refuse to offer a different framework for analyzing
student speech cases where the punishment for speech involved a suspension from an
extracurricular activity as opposed to a suspension or expulsion from school. Therefore,
Blue Mountain and Layshock apply to prevent a student from being punished for profane
speech originating outside of school.
Defendant also argues that Plaintiff’s Snap should be construed as on-campus
speech, and thus the Fraser doctrine would enable the District to punish her for the
profanity contained within her Snap. While an identical argument was made and rejected
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by the Third Circuit in Layshock, this Court will make clear why the District’s cited authority
fails to support its position. See id. at 216-18. To support the application of Fraser to out-ofschool speech Defendant points to just two cases. First, Defendant cites a Pennsylvania
Supreme Court case: J.S. ex rel H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa.
2002). There, the Court held that off-campus speech, specifically speech generated on the
internet, could be “imported” onto school grounds if the speech was directed at a specific
audience at the school and was accessible on school property. Id. at 685. The Third Circuit
has plainly stated that this case does not support the idea that profane speech created offcampus can be “imported” on-campus to invoke Fraser. Layshock, 650 F.3d at 217. Rather,
the Circuit held that the death threats made by the student in that case could have caused
a substantial disruption at the school and thus invoked Tinker, not Fraser. Id. And here,
District’s counsel proffered, “this is not a Tinker case.” Therefore, the District’s reliance on
Bethlehem Area School District is misplaced. Second, Defendant cites to a decision
rendered by the United States Court of Appeals for the Fourth Circuit: Kowalski v. Berkeley
County Sch., 652 F.3d 565 (4th Cir. 2011). This case, like Bethlehem Area School District,
is not instructive here. In Kowalski, the Fourth Circuit made a point to note that the Third
Circuit sitting en banc concluded that “a school could not punish a student for online speech
merely because the speech was vulgar and reached the school.” 652 F.3d at 573 (citing
Layshock, 650 F.3d at 205). Since the Third Circuit precedent cited by the court in Kowalski
remains in place, this Court’s decision will not be swayed by the decision of a sister Circuit.
Additionally, the District again misconstrues this case as one providing the District authority
under Fraser to prohibit profane speech, rather than as a case meeting the criteria set forth
in Tinker. Id. (“We need not resolve, however, whether this was in-school speech and
therefore whether Fraser could apply because the School District was authorized by Tinker
to discipline [Plaintiff]. . . .”).
Finally, the District advanced the argument that the Snap did not implicate the First
Amendment because it was not expressive speech. In this Court’s view, the words and
gesture in the Snap qualify as expressive speech.
9

Because this Circuit has made clear that Fraser’s profanity exception to Tinker does
not apply to off-campus speech and Plaintiff B.L.’s speech cannot be considered oncampus speech, Plaintiffs are likely to succeed on the merits.

B. Irreparable Harm
Plaintiffs will suffer irreparable harm if preliminary relief is not granted. “[T]o show
irreparable harm a plaintiff must demonstrate potential harm which cannot be redressed by
a legal or equitable remedy following a trial.” Acierno v. New Castle County, 40 F.3d 645,
653 (3d Cir. 1994). The Supreme Court has stated that “the loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1973). The Third Circuit has held similarly. See, e.g.,
K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 113 (3d Cir. 2013) (noting
that a restriction on students’ exercise of their right to freedom of speech “unquestionably
constitutes irreparable harm.”); B.H. v. Easton Area Sch. Dist., 827 F. Supp. 2d 392, 409,
aff’d 725 F.3d 293 (3d Cir. 2013).
Here, as Plaintiffs note, Plaintiff B.L. has been “barred from her chief extracurricular
activity on an ongoing basis as punishment for her protected self-expression.” (Doc. 3, at
20.) Further, if the cheerleading rules remain in place, Plaintiff B.L. would be subject to
continuing censorship of her protected speech. 10 (Id.) Because these alleged harms refer
directly to a restriction on Plaintiff B.L.’s exercise of her right to freedom of speech, she has
“unquestionably” established that irreparable harm would exist absent preliminary relief. See
Pocono Mountain Sch. Dist., 710 F.3d at 113.
C. Balance of the Hardship Favors Plaintiffs
“To determine which way the balance of hardship tips, a court must identify the harm
to be caused by the preliminary injunction against the possibility of the harm caused by not
10

The District seems to ignore the fact that B.L. would return to tryout for the
team even if the suspension for this cheerleading season remains in
place.
10

issuing it.” Buck v. Stankovic, 485 F. Supp. 2d 576 (M.D. Pa. 2007) (citing Los Angeles
Memorial Coliseum Commission v. NFL, 634 F.2d 1197, 1203 (9th Cir. 1980)); see also
Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 178 (3d Cir. 2002).
The District will suffer no harm as a result of the preliminary injunction. The District
only proffers a single potential harm, the loss of the speech policy in question. The District
suggests that if the speech policy is eliminated the District will have no means to discipline
other cheerleaders who “[follow] B.L.’s example” and use profanity while not in school or
engaging in a school sponsored activity. (Doc. 9, at 23.) However, this is not a cognizable
harm to the district because “school discipline does not depend on the necessity of a
speech code” like the one at issue here. Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307
F.3d 243, 259 (3d Cir. 2002). On the other hand, Plaintiff faces continued censure due to
her earlier speech, and future punishment based on her out-of-school speech if preliminary
relief is not granted.
Because the District offers no legitimate harm that could be caused by the
preliminary injunction, the balance of hardship tips in favor of the Plaintiffs.
D. Relief is Favored by the Public Interest
If a party can demonstrate “both a likelihood of success on the merits and irreparable
injury,” the public interest will typically favor that particular party. Miller v. Skumanick, 605
F.Supp.2d 634, 647 (M.D. Pa. 2009) aff’d sub nom. Miller v. Mitchell, 598 F.3d 139 (3d Cir.
2010). However, courts should still weigh all four factors before deciding whether to grant
the injunction. Id. So, even though this Court will find that Plaintiffs are likely to succeed on
the merits and will suffer irreparable harm absent preliminary relief, the public’s interest
must be considered.
Plaintiffs asset that granting preliminary relief will be in the public interest because
“the public’s interest favors the protection of constitutional rights in the absence of legitimate
countervailing concerns.” Easton Area Sch. Dist, 827 F. Supp 2d at 409 (citing Council of
Alternative Political Parties v. Hooks, 121 F.3d 876, 884 (3d Cir. 1997)). Plaintiffs correctly
note that this is a First Amendment case, and that this case deals directly with the protection
11

of speech within the Amendment’s ambit. Further, the only countervailing concern evident
on these facts, and presented by the District, is the suspension of the cheerleading speech
policy. But, as already noted, “school discipline does not depend on the necessity of a
speech code.” Sypniewski, 307 F.3d at 259. Therefore, Plaintiff is correct in noting that the
interest of the public weighs in favor of granting her Motion.
IV. Conclusion
This Court will grant Plaintiffs’ Motion for a Preliminary Injunction because 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.
An appropriate order follows.

October 5, 2017
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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