Unsportsmanlike Conduct: High School Athletes’ Suspensions Upheld for Bullying
By: Stella Pratt* Posted: 04/01/2022
The Supreme Court’s 2021 decision in Mahanoy Area School District. v. B.L. held that a school district could not suspend a student who made vulgar comments about her school on Snapchat, a social media platform. However, the Court did not set out a test or standard to determine which off-campus student speech could be regulated and which speech could not. The Court instead stated that schools can regulate “serious or severe bullying or harassment targeting particular individuals” without actually defining “serious or severe” bullying or what it takes to establish “targeting.” Even so, in Doe v. Hopkinton Public Schools, the First Circuit recently decided that the bullying that occurred in that case was “serious or severe” and “targeted” a specific student.
Connected and Cyberbullied
Robert Roe was a freshman hockey player attending Hopkinton High School in Massachusetts when his father filed a bullying complaint with the school. The complaint alleged that Roe was being bullied by a member of the hockey team, who was recording Roe without his consent and sending the videos to other players on the hockey team. Hopkinton High School immediately began an investigation, which revealed a Snapchat group chat containing eight members of the hockey team, including John Doe and Ben Bloggs, which excluded and made fun of Roe and his family. The investigation further revealed that Doe and Bloggs “were aware of, joined, participated in, and encouraged the bullying.” Pursuant to the school’s bullying policy, Doe was suspended for three days and Bloggs was given a five-day suspension. Both parties filed suit in federal court alleging that the suspensions “violated the[ir] First Amendment rights.”
Testing First Amendment Protection
A three-part test must be satisfied to win a First Amendment case, with the burden on the claimants. Plaintiffs must show 1) they engaged in constitutionally protected conduct, 2) they were subjected to adverse action by the defendant, and 3) the protected conduct was a substantial or motivating factor for the adverse action. In Tinker v. Des Moines Independent Community School District, the Supreme Court held that student conduct or speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others” is not protected by the First Amendment. Then, Mahanoy established that schools can regulate off-campus speech that involves “serious or severe bullying or harassment targeting particular individuals.” However, there must be a causal connection between the speech and the bullying.
Snapped, but Protected?
In Hopkinton, the only part of the three-part test to be determined was whether Doe and Bloggs were engaged in protected speech. The court determined that they were not engaged in protected speech because both students made derogatory comments about Roe in the Snapchat group chat. Further, both students acknowledged the wrongness of their comments and the role they played in creating an atmosphere that encouraged the bullying of Roe. Finally, the court noted that the record established that the bullying went beyond just speech and included “nonconsensual photos and videos of Roe, attempting to get him to say inappropriate statements on camera, and isolating him from the hockey team,” none of which is protected under the First Amendment.
Students over Snapchat
This opinion follows the precedent and standards set in Tinker and Mahanoy. In 2018, when Roe’s bullying took place, approximately sixty-nine percent of teens used Snapchat regularly. As Mahanoy demonstrated, students are using Snapchat for a variety of purposes, not all of which are positive. If schools are unable to punish students for threats or statements made on Snapchat, then school anti-bullying policies and conduct rules are moot. To avoid school policies becoming moot, Hopkinton stressed that the First Amendment challenge focused on the “reasonableness of the school’s response” to the students’ actions, not the students’ intent. As such, courts should defer to schools’ decisions to punish bullying or negative statements that are directed towards students on social media.
On-Campus, Off-Campus, Does Not Matter
While Mahanoy and Hopkinton appear to raise identical issues, there is a clear and meaningful distinction between them. The student in Mahanoy made a post showing her “irritation with . . . the school and cheerleading communities.” However, the students in Hopkinton were using Snapchat to bully a particular student. The message is clear. While schools may not be able to punish students for all speech on social media, being suspended for using social media to bully or harass a student is not a violation of the First Amendment.
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2023, Villanova University Charles Widger School of Law
 See Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2043 (2021) [hereinafter Mahanoy] (vacating B.L.’s suspension, affirming Third Circuit’s opinion in B.L.’s favor); see also Christine Elgersma, Everything You Need to Know About Snapchat, Common Sense Media (June 18, 2018), https://phys.org/news/2018-06-snapchat.html (explaining how Snapchat works). Snapchat is a social media platform that allows people to share pictures, moments, or texts with users they add as connections. See id. (explaining how Snapchat user shares different content with friends within application). “[T]o add friends, you can upload your contacts or search for people you know.” Id. Snapchat is unique in that the sent messages, called snaps, disappear once they are opened and looked at or after a set period of time, often twenty-four hours. See id. ([explaining how snaps “are meant to disappear after they're viewed”). “However, recipients can take a screenshot . . .,” which is a picture of the snap, and save it to their phones. See id. (explaining messages can be saved by recipient). As such, while users may think that what they are posting is temporary, it can be saved and preserved indefinitely by the person who received the message. See id. (noting nothing is ever truly deleted on internet).
 See David L. Hudson, Jr., Mahanoy Area Sch. District v. B.L.: The Court Protects Student Social Media but Leaves Unanswered Questions, 2021 Cato Sup. Ct. Rev. 93, 105 (2021) https://www.cato.org/sites/cato.org/files/2021-09/supreme-court-review-2020-2021-4.pdf (noting Mahanoy Court left several questions unanswered, including what constitutes on- or off-campus speech).
 See id. at 106 (citing Mahanoy, 141 S. Ct. at 2045) (discussing what speech can be regulated by schools). While the Court did state a general rule for what type of speech can be regulated, the Court did not define the terms in that rule to provide clarity for schools, students, and the courts. See id. (stating current state of law unclear).
 19 F.4th 493 (1st Cir. 2021) [hereinafter Hopkinton].
 See id. at 508 (affirming district court’s decision that bullying was serious, was severe, as targeted towards particular student).
 See id. at 498 (explaining “On February 4, 2019, Roe’s father filed a [written] bullying complaint . . .” with school Roe was being bullied at by hockey teammate). Under Massachusetts law, all high schools must promulgate and maintain a bullying policy and a process that permits students and parents to file bullying complaints. See id. at 498-99 (noting Hopkinton’s bullying policy is identical to Massachusetts’ anti-bullying statute while providing Hopkinton bullying definition) (internal citation omitted).
 See id. at 498 (noting Roe’s parents were not claiming to know full story, but believed this to be pattern of bullying affecting Roe’s well-being).
 See id. at 499-500 (revealing unauthorized photos, videos of Roe, Roe’s family members, including “demeaning and expletive-laced comments regarding Roe’s appearance, voice, intimate anatomy, parents, and grandmother”). The Snapchat group chat had been going on for three months by the time the school commenced its investigation; however, due to the nature of Snapchat, school officials were only able to see images or conversations that had been saved or occurred within the past twenty-four hours. See id. at 500 (determining bullying was still occurring). Regardless, there were sufficient images and comments saved to prove that the students in the group targeted Roe, and all of those students admitted to the bullying and targeting when interviewed by the school. See id. at 501 (providing statements from students acknowledging targeting of Roe).
 See id. at 500 (describing Doe’s, Bloggs’s behaviors in group chat including their active participation in bullying of Roe). Some of the saved messages revealed a message by Bloggs asking “[a]re [Roe]'s parents ugly too [o]r did he just get bad genes” and that Roe’s family is “a family of absolute beauties,” after receiving a picture of Roe’s family at a hockey game. See id. (revealing saved messages in Snapchat group chat). Doe stated that “[Student 5] and [Roe] were made on the same day[.] [Student 5] was the starting product and [Roe] is what it turned into[,] kinda like a game of telephone in 1st grade.” See id. (noting messages saved within past twenty-four hours).
 See id. at 498-99, 502 (explaining suspensions that brought about lawsuit).
 See id. at 502 (explaining both parties filed suit individually, but suits were consolidated on issue of whether Doe’s or Bloggs’s First Amendment rights were violated when school suspended them).
 See D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012) (explaining plaintiff bears burden to prove First Amendment rights have been violated).
 See id. (summarizing three-part test required to show violation of First Amendment).
 See Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503, 512-13 (1969) [hereinafter Tinker] (“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 like the conflict in Vietnam, if he does so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.”).
 See Mahanoy, 141 S. Ct. at 2045 (expanding Tinker to include certain off-campus speech, activities).
 See Norris on behalf of A.M. v. Cape Elizabeth Sch. Dist., 969 F.3d 12, 31 (1st Cir. 2020) (explaining school may take adverse action against students only where there is casual connection between speech, bullying).
 See Hopkinton, 19 F.4th 493, 504 (1st Cir. 2021) (explaining all parties agreed second, third prongs of test were satisfied since all parties agreed Doe, Bloggs were suspended because of bullying report).
 See id. at 507 (quoting messages sent by both students in group chat making fun of Roe’s appearance). For further discussion of the content of the derogatory comments directed at Roe, see supra note 9 and accompanying text.
 See Hopkinton, 19 F.4th at 507-09 (explaining record clearly shows both students were aware what they were doing was wrong but continued to engage in bullying including encouraging other teammates in group chat to also make derogatory comments about Roe).
 Id. at 509 (“Speech or conduct that actively and pervasively encourages bullying by others or fosters an environment in which bullying is acceptable and actually occurs – as in this case – is not protected under the First Amendment.”).
 See Tinker, 393 U.S. 503, 513 (1969) (permitting schools to discipline students for speech without violating First Amendment); see also Mahanoy, 141 S. Ct. at 2045 (permitting punishment for off-campus speech made on Snapchat).
 See Monica Anderson & JingJing Jiang, Teens, Social Media and Technology, 2018, Pew Rsch. Ctr. (May 31, 2018), https://www.pewresearch.org/internet/2018/05/31/teens-social-media-technology-2018/ (reporting “95% of teens have access to smartphone[s] . . .,” noting Snapchat is most-used platform by teens).
 See Mahanoy, 141 S.Ct. at 2043 (stating B.L. used her Snapchat account to post picture of herself with both middle fingers raised with caption of “f*** school f*** softball f***cheer f*** everything” (censoring added)); see also David Meyer, Students Across US Arrested for Viral School Threats ‘Challenge’, N.Y. Post (Dec. 19, 2021, 1:28 P.M.), https://nypost.com/2021/12/19/students-across-us-arrested-for-school-shooting-social-media-trend/ (reporting multiple students were arrested, suspended for posting threatening messages on their Snapchat accounts including one student sending Snapchat “indicating he was going to shoot black students” at his high school).
 See Lily M. Strumwasser, Testing the Social Media Waters: First Amendment Entanglement Beyond the Schoolhouse Gates, 36 Campbell L. Rev. 1, 14 (2013), https://scholarship.law.campbell.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1572&context=clr (explaining actions taken on social media outside of school hours affect students in school, but teachers can be hesitant to enforce school policies when offending behavior did not occur directly in school during school hours).
 See Hopkinton, 19 F.4th at 509 (providing justification for upholding school suspensions of Bloggs, Doe).
 See id. at 505 (noting school policies, school actions are given deference if they are reasonable).
 Compare Mahanoy, 141 S. Ct. at 2042-43 (framing issue as whether school could punish off-campus speech by student criticizing school on Snapchat), with Hopkinton, 19 F.4th at 497 (deciding issue of whether off-campus speech made by students on Snapchat bullying another student could be punished).
 See Mahanoy, 141 S. Ct. at 2047 (explaining B.L.’s comments were made about communities she is part of, not directed at any specific individual).
 See Hopkinton, 19 F.4th at 501 (reporting students were specifically targeting Roe to “pick on” him).
 See id. at 509 (holding bullying, including harassing language directed at student, is not protected by First Amendment).