May 18, 2021

kayumanisspa

Beyond law

Cheerleader’s case could shape workplace social media policies

A recent hearing by the U.S. Supreme Court concerning the free speech rights of students may have significant repercussions in the workplace for employers and employees in Minnesota and elsewhere.

The justices reviewed a lower court decision in a lawsuit brought by a middle school student in Pennsylvania who was suspended for a year from her school’s cheerleading squad because of offensive postings she made on social media.

Although the litigation arises in a school setting, the impact of the upcoming Supreme Court ruling expected before it adjourns for the summer may affect many employers and employees throughout the country, including here in Minnesota.

The lawsuit started on a weekend nearly four years ago when a disappointed ninth-grader at a public school sent a message on Snapchat to about 250 of her friends shortly after learning that she would not be elevated from the junior varsity cheerleading squad. Her social media posting included an image of a pair of students with their middle fingers raised, along with a text message expressing a similar epithet informing school officials what they could do with themselves. She used the same vulgar word four times regarding her displeasure with “school,” “softball,” “cheer” and, for good measure, “everything.”

When apprised of the posting, school officials suspended her from the cheer squad for a year in order to “avoid chaos” and maintain a “team like” environment.

The student sued, prevailing before a federal appellate court in Philadelphia, which held 2-1 that the First Amendment prohibited the school from punishing a student for speech that took place outside of school grounds. The decision clashed with other federal court rulings that have upheld discipline imposed against students for off-premises conduct, including social media postings deemed to be disruptive or offensive.

This case basically pits the duty of school authorities to impose discipline vs. the right of freedom of expression of students.

But the case took some twists. The conventional clash of discipline vs. expressive rights was viewed by the school district through the prism of the COVID pandemic. Seeking to overturn the lower court ruling, the school district implored the justices in the nation’s capital to answer favorably for it a “question bedeviling the nation’s nearly 100,000 public schools,” explaining that the “issues … have become even more urgent as COVID-19 has forced schools to operate online.”

But the student, through her attorney provided by the American Civil Liberties Union (ACLU), retorted that the First Amendment protected the disgruntled student’s “colorful expression of frustration … on her personal social media, in the weekend, off campus, [and] containing no threat of harassment … and did not cause or threaten any disruption.”

These features highlight why the case portends such significance across broad swaths of society. The underlying issue of the ability of schools to impose discipline upon students for conduct off-premises, particularly on social media, arises with increasing frequency in the workplace, too.

Minnesota has had a plethora of these incidents. The protagonists have included low-level hospitality employees, police officers, corporate managers, teachers, medical personnel and a bevy of others who have been disciplined because of their off-duty behavior, particularly for engaging in social media matters that are deemed anti-social: cyber bullying; bigoted remarks; or otherwise offensive statements.

These patterns have proliferated due to the perversity of social media that has given unfettered dissemination coupled with hot-button social issues.

Public-sector employees have been caught in the cross hairs, particularly regarding those engaged in law enforcement and teaching, who seem to be among those most often subject to discipline because their employers feel their comments set a bad tone coming from those who are supposed to be role models. Because they are in the public sector, however, they are clothed with Constitutional rights, including freedom of expression, which can allow them to contest disciplinary sanctions.

Private-sector employees do not toil under that legally protected umbrella. Few have rights to fight disciplinary action. Those in labor unions may contest discipline through grievance and arbitration provisions in their collective bargaining agreements.

Employees in the nonunion sector in Minnesota and many other states, comprising about 85% of the workforce have less ability to fend off discipline. Those who engage in social media postings or other actions that have gender, racial, or religious overtones might be able to seek refuge under federal and state civil rights laws.

How the Supreme Court resolves the cheerleader case may provide significant guidance for parallel issues in the workplace.

Minnesota could take the lead in protecting off-duty conduct and expressive freedom of employees. Minnesota has a law known as the Lawful Consumable Products Act, barring adverse action by employers because of off-duty use of lawful consumable products, such as tobacco and alcohol. It is not much of a stretch to extend that law to the expression of nonthreatening views and opinions.

As the justices ponder the case, employers and those in management will be hoping they uphold the right of school officials to impose discipline, while employees and their allies will be cheering for the student to win.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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