Photo courtesy iStock: Tobiesmom
A Texas high school football player who sent a Snapchat video with profanity and racial language to a student from a rival high school lost his First Amendment lawsuit in federal court.
The court dismissed the lawsuit, saying school officials were entitled to qualified immunity.
Bronson McClelland was the starting quarterback and team captain of the Katy High School football team. In October 2019, Katy High School defeated Tompkins High School in a football game. After the game, students from both schools went to a local Whataburger.
McClelland sent a Snapchat video to Jose Hernandez, a Tompkins High School student who was not on the football team. The video stated: “We’ll put your mother[*]*cking ass in the hospital, n*gga. What the f*[*]ck.”
Hernandez recorded the video and sent it to several friends, including Tunmise Adelaye, an African-American Tompkins High football player. Adelaye uploaded the video to his personal Twitter page.
Hearing of this, Katy school officials informed McClelland and his father that Bronson McClelland would be suspended for two games and stripped of his position as captain of the team.
Katy High School posted a message stating that a member of the football team had sent a taunting message to a member of a rival football team and that the school was investigating the incident. McClelland later filed a federal lawsuit, contending that he was unfairly punished for purely off-campus conduct, and that school officials improperly stated that he had sent his message to a member of a rival football team instead of another student who was not African-American.
U.S. District Judge Keith P. Ellison dismissed the lawsuit in his Nov. 1, 2021, decision in McClelland v. Katy Independent School District based on qualified immunity, a doctrine that enables government officials to avoid liability unless they violate clearly established constitutional law.
The federal judge noted that “the Supreme Court [in Mahanoy Area School District v. B.L.] has indicated that the Tinker standard continues to apply and that certain circumstances may preclude First Amendment protection of even off-campus speech.”
The Tinker standard refers to the U.S. Supreme Court case Tinker vs. Des Moines Independent Community School District, in which the Court held that "public school officials cannot censor student expression unless they can reasonably forecast that the speech will substantially disrupt school activities or invade the rights of others," as explained in the First Amendment Encyclopedia.
Ellison also said the Supreme Court in Mahanoy specifically indicated that schools retain regulatory interests over student off-campus speech that involves harassment or bullying.
The judge noted that “there was no general rule that could have placed Defendants on notice that it would be unconstitutional to discipline Mr. McClelland for his off-campus speech, which included a threat of physical violence against another student.”
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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).