Proskauer

In a saga that combined the gridiron, social media, a vehicle search, and a First Amendment-related lawsuit against a school district, a former high school football star failed in his comeback to revive claims at the Fifth Circuit. In an imbroglio that started with a Snapchat post and ended with a high school quarterback’s suspension, the Fifth Circuit affirmed the dismissal of claims against a Texas school district and a roster of school administrator and law enforcement defendants and ruled that the various defendants did not violate Bronson McClelland’s (“Plaintiff”) First Amendment rights after he was benched and suspended for posting an offensive, post-game Snapchat message that later went public. (McClelland v. Katy Ind. School Dist., 63 F.4th 996 (5^th Cir. 2023)).

Plaintiff Bronson McClelland was the star quarterback and captain of his successful high school football team at Katy High School in Katy, Texas. He had apparently received potential interest from college programs, but one snap changed everything. On October 3, 2019, after a narrow victory over a rival team, a post-game rendezvous at a local Whataburger resulted in taunting by students from the opposing school. This banter culminated in McClelland sending a Snapchat video that included both a threat of violence and racially charged language. Though the snap was initially sent to a non-athlete, the video was circulated to members of the opposing football team, posted on Twitter, and received media attention.

Within 24 hours McClelland and his parents met with his coach and the school principal, where he was handed a two-game suspension and stripped of his captain’s title. McClelland issued a public apology on social media and noted his punishment; this drew the ire of the Katy Independent School District (“KISD”), however, who were purportedly concerned that the public might believe they rushed to judgment. The school responded with a statement of their own that the investigation was continuing and noted that a Katy High School student “had used racially charged language to taunt a student athlete on the opposing team.” Plaintiff took issue with the school’s characterization that he had sent the snap directly to anyone on the opposing team, as opposed to having sent the snap to a non-player, who then forwarded the snap to the opposing player and others. Upset with KISD’s statement, McClelland eventually filed suit against a myriad of persons and entities affiliated with his school and community at large.

One day before the deadline he had given the school district to retract its statement, McClelland’s car was flagged in an allegedly routine search of the school parking lot. Further investigation resulted in the discovery of a trace amount of a green leafy substance on the car’s floormats, later identified by the police as marijuana. This encounter with grass resulted in a possession charge, placement in an alternative school program, and de facto disqualification from the football program.

McClelland attempted to transfer. A settlement between Plaintiff and his family and KISD was reached in which, among other things, KISD would not impede his transfer to and ability to play football for another school and Plaintiff would release any claims against KISD as long as he was not denied admission to a transfer school or declared ineligible for varsity sports in California. However, for several reasons, plaintiff was unable to enroll in a different district. Remaining in KISD, he was placed in the alternative school program and graduated in December 2020. As a result, the game clock on McClelland’s high school and football career expired due to his disciplinary issues and inability to find a transfer school, and in January of 2021, McClelland filed a lawsuit against KISD and its principal and a host of local school and police employees. Alleging violations of 42 U.SC. § 1983 (Civil Deprivation of Rights), substantive and procedural due process rights, defamation and various state law claims, McClelland’s new playing field was the U.S. District Court for the Southern District of Texas.

Central to McClelland’s position was that the school district overstepped and violated his First Amendment rights when they punished him for off-campus speech. Since the Supreme court famously declared in the Tinker decision that “students or teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” municipalities across the country have tackled issues of how far free speech can go in school and how far school districts can regulate or punish students’ school-related off-campus activities to prevent substantial disruption or protection of the school community. More recently, with the uptick of social media and internet use, the bounds of “in school” and the potential reach of student off-campus speech have expanded as well. As the appeals court stated, the present field position is that schools have a special interest in regulating student conduct which “materially disrupts classwork or involves substantial disorder or invasion of the rights of others" and to satisfy this standard, schools must demonstrate that “the speech in question actually caused, or may reasonably be forecast to cause, a ‘substantial disruption of or material interference with school activities’”, thereby balancing students’ freedom of expression against the need to maintain a safe, effective learning environment. [See also our coverage of a recent Supreme Court decision involving school discipline over social media posts in the Summer 2021 Three Point Shot]. Whether it’s the Whataburger or the water fountain, take heed.

In response to the suit, the individual defendants (principal, football coach, police officials) (“Individual Defendants”) and school district defendants (which includes KISD) (collectively “Defendants”) asserted qualified-immunity defenses. As the appeals court stated, qualified immunity from civil liability is available for government officials if a defendant’s conduct does not violate statutory or constitutional rights “clearly established” at the time. And, the district court found: “Though courts ‘do not require a case directly on point’ to defeat a qualified-immunity defense, a school official is entitled to immunity from suit unless ‘existing precedent…placed the statutory or constitutional question beyond debate.’”

Examining all the blurred lines around school speech, a Texas district in September 2021 held that McClelland’s free speech rights were not clearly established when he was disciplined. Thus, the lower court concluded that the individual defendants were entitled to qualified immunity; Plaintiff’s claims against KISD were also dismissed as the court held that under 42 U.S.C. § 1983, municipalities cannot be held vicariously liable for the acts of their employees unless a plaintiff's allegations satisfy certain requirements, which were not met in this case.

Having failed to state a claim for either municipal or individual liability for the violation of his free speech rights, McClelland’s § 1983 claim was dismissed. Following this holding, Plaintiff’s claims for a violation of substantive and procedural due process were also denied. Among other things, the district court concluded that the rights claimed – playing high school football or team captainship – are not protected property rights or liberty interests (the court also held that students do not have a protected right to placement at a particular school or that placement in alternate education programs deprives students of a protected interest). Given the dismissal of federal claims, the district court declined to exercise supplemental jurisdiction over Plaintiff’s state claims.

Upon appeal in the Fifth Circuit, the lower court decision was affirmed. The appeals court agreed that, at the time of the claim, the Supreme Court and the Fifth Circuit had not clearly demarcated the limits of off-campus speech regulation.  As a result, Plaintiff could not point to a clearly established rule that discipline for a “threat of violence apparently stated in jest" is unconstitutional.  The court went on to find that the school administrator and other individual defendants were entitled to qualified immunity, thereby negating the need for the appeals court to undertake a deep inquiry into Plaintiff’s First Amendment claims.  The decisions to dismiss McClelland’s other claims were also affirmed with the appeals court. And with that, the final whistle was blown.

In the end, this saga is an unfortunate, cautionary tale that has sadly occurred in many school settings. The district court in this case offered its own take that despite one disgraceful act that escalated into a federal case, the law could not absolve the Plaintiff: “The Court is not insensitive to Plaintiff’s circumstances. His educational career and his hopes for a future in college athletics suffered significant injury, largely due to a moment’s worth of juvenile and shameful misconduct. Nevertheless, sympathy for a young man’s plight does not license any court to countermand well-established law or to offload ultimate responsibility from the individual to educational authorities.”