Got it in one.
But, here’s my opinion on the legal side. IANAL.
Here the state of Pennsylvania refuses to allow its citizen to exercise the privilege of participating in the extracurricular atheletic activity of cheerleading, except on condition that she refrain from disrespecting her school, coaches, teachers, and peers, and that she refrain from using foul language and inappropriate gestures.
Said citizen brings action in federal court under 42 U.S.C. § 1983, which provides a civil cause of action for deprivation of rights under color of law. In granting jurisdiction the Court must first determine whether the defendants deprived plaintiff of her rights, privileges, or immunities secured by the Constitutions and federal laws; second, whether the defendants did so under color of any statute, ordinance, regulation, custom, or usage of the state of Pennsylvania. I do not think this case involves deprivation of rights secured by the Constitution or federal law, and so do not reach the second prong.
The privilege of a public education is not a fundamental right under that document. Plyer v. Doe, 457 U.S. 202 (1982). San Antonio Independent School District v. Rodriguez , 411 U.S. 1 (1973). “Clearly, since the Supreme Court has held that there is no fundamental right to public education, there is no fundamental right to participate in intercollegiate athletics, a component of public education.” Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 557 (3rd Cir. 2007, citations omitted).
The privileges or immunities clause of the Fourteenth Amendment applies to “privileges or immunities” of the United States, to be distinguished from privileges and immunities of the individual states. The privilege of participating in extracurricular activities is one ultimately bestowed upon plaintiff by the sovereign state of Pennsylvania, which operates the school she attends. As such, is not properly a “privilege” within the meaning of the Fourteenth Amendment. Further, it is only bestowed on the condition that she abides by the above mentioned conduct; even if this clause did apply, as I think it would in combination with the “privileges and immunities” clause, there is no underlying “privilege” to participate without abiding by such conduct.
Perhaps this is why plaintiff claims her right to freedom of speech, as protected by the First Amendment. The relevant text reads,
“Congress shall make no law […] abridging the freedom of speech,”
Longstanding jurisprudence assumes that “freedom of speech […] [is] among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Gitlow v. New York, 268 U.S. 652, 666 (1925). That clause, in turn, reads,
“nor shall any State deprive any person of life, liberty, or property, without due process of law;”
I personally believe the “privileges or immunities” clause is the proper vehicle for incorporation. Either way, the state of Pennsylvania may not abridge the freedom of speech. But has the plaintiff’s “liberty” to speak freely been deprived?
Plaintiff’s participation in cheerleading is a voluntary activity. Unlike school attendance, which is mandatory accoring to law, the state imposes no fine or penalty on students who forego participation in cheerleading. She seeks to have the Court safeguard her “liberty” to participate in this voluntary, extracurricular activity without being limited by the code of conduct, but no reasonable Court would construe the Constitution so as to protect her “liberty” to participate in cheerleading activities without attending the required practice meetings or vocalizing reasonable cheers. If she wishes to exercise her freedom to express vulgarities or flash disrespectful symbols, the state cannot and does not attempt to stop her. The one year suspension from participating in extracurricular activities does not amount to a restriction on any fundamental personal right or liberty protected by the Fourteenth Amendment. Nor does it abridge a privilege or immunity of the United States (explained above).
For these reasons, I would dismiss the case for lack of jurisdiction. I would not address the question of whether states may regulate student speech outside of the school setting.
~Max
) than private organizations who always use “free speech” against those in the organization’s sphere.