PITTSBURGH – A federal judge has denied a preliminary injunction to counsel for a 14-year-old African-American and special needs student at Ambridge High School, who claims he was kicked off the football team for participating in an angry exchange with a teammate who had bullied him on Snapchat.
A.F. (a minor, by and through his father, Antonio Fultz) first filed suit in the U.S. District Court for the Western District of Pennsylvania on Aug. 6 versus Ambridge Area School District. All parties are of Ambridge.
“A.F. joined the high school football team in April of 2021. A.F. played the position of starting defensive tackle. A.F. has participated in summer practices without pads in anticipation of playing football during the 2021-22 season,” the suit said.
“On June 23, 2021, A.F. was communicating with his weightlifting coaches, Xiyrail Barnat and Keith Olden in the Snapchat group via text messages. They were concerned A.F. was not going to weightlifting. An older Caucasian teammate, a sophomore, intervened in the communications. The teammate, who was also competing for the defensive tackle position held by A.F., sent voice messages to A.F. calling him a 'lazy bum' and swearing at him.”
The suit alleged A.F. had a history with this sophomore student, competing with him athletically since seventh grade and having been the victim of an assault from him and his cousin back in 2018.
“A.F. recently beat the teammate for the starting defensive tackle position and believed he was being bullied again by this teammate. A.F. and the teammate began to insult each other, A.F. by texts and the teammate by voice messages. The argument escalated when the teammate told A.F., ‘You want to fight? I will kill you.’ Similar threats were then exchanged by A.F. in text and the teammate by voice message. A.F. sent an older picture he had in his phone of him holding a BB gun with the barrel pointed away and over his shoulder. A.F. sent no threat attached to the picture,” per the suit.
“The argument stopped between A.F. and the teammate soon after the picture was sent. The argument was observed by coaches, Olden and Barnat, who remained logged on the app. Olden has provided A.F. with a subsequent written statement that reads, ‘Nothing wasn’t said that doesn’t get said everyday between kids.’ Barnat has provided A.F. with a subsequent written statement that reads, ‘In the Snapchat messages there was a back-and-forth argument between’ A.F. and the teammate.”
As a result of two subsequent school meetings, a police investigation and a letter sent from the District to A.F., it was learned that no criminal charges would be filed against him – but that he was being kicked off the football team for the 2021-2022 School Year, and the other student involved in the online altercation would not be disciplined.
The plaintiff feels that this disparate treatment is based on his race, and is therefore discriminatory.
Though counsel for the plaintiff informed the District of the recent decision reached by the U.S. Supreme Court in Mahanoy Area School District v. B.L., when it found that school system violated a student’s rights by kicking her off the cheerleading team for a remark she made on Snapchat, but the District has not reversed its decision to remove A.F. from his school’s football team.
Additionally, the suit stated that on Aug. 1, the sophomore teammate at issue posted an unsettling picture of his face in the dark on Snapchat with the comment, “Anyone else have the urge to kill someone u hate at night.”
Fultz has advised the school of the post.
After receiving permission from U.S. District Court for the Western District of Pennsylvania Judge William S. Stickman IV on Aug. 13, subsequent filings in the case have been made exclusively under seal, with a single exception.
On Aug. 16, the District filed a response opposing the plaintiff’s desire for a temporary restraining order and preliminary injunction.
“The District admits that it suspended A.F. for the 2021-2022 football season for posting on Snapchat a series of threats of violence directed towards a teammate on the football team, in addition to A.F. posting a picture of a gun on a live video chat with his teammates. The District denies that it punished A.F. for out-of-school speech,” counsel for the District said.
UPDATE
Stickman issued a memorandum opinion and order on Aug. 27 denying the plaintiff’s motion for a temporary restraining order and preliminary injunction, finding that he had not met his burden of proof for such relief and rejected the argument that Mahanoy held water in this separate matter.
“The evidence of record shows that A.F.’s communications were markedly different from those of the student in Mahanoy. Her statements were, no doubt, profane. Yet, they threatened nobody, did not allude to any actual or proposed danger to anyone, and could reasonably be construed as a crudely articulated commentary on the state of her cheer and softball programs. They certainly did not, as the Supreme Court explained, constitute fighting words or otherwise cross the line set by Tinker regarding speech likely to disrupt the school community,” Stickman said.
“Here, A.F.’s communications were not merely profane, but they were actual threats. Much of the threatening language was directed, primarily, at one student, R.G. Rather than a generic ‘f–k school f–k softball fuck cheer f–k everything,’ A.F. threatened to ‘show up at practice to beat yo a– b–h,’ to ‘grab a f–ing bottle and bash that s–t on your face till I see your brain b–h,’ to ‘send you b–h a– to the father,’ and further stated ‘it ain’t gib be stupid when yo a– dead’ and ‘I sincerely wish death upon your soul.’ These threats were followed by the posting of A.F. with a gun, which was believed at the time to be a real gun.”
According to Stickman, “A.F.’s communications are threats, fighting words and the very type of communications that the Supreme Court recognized as falling outside the protective scope of the First Amendment and, conversely, within the right of a school to regulate. It does not matter whether these types of communications occur on-campus or off-campus. They are simply not protected by the First Amendment and fall squarely within the authority of schools to regulate and to impose appropriate discipline.”
“Quite simply, Mahanoy does not disturb the established case law that free speech protections do not extend to modes of expression such as obscenity, defamation and fighting words,” Stickman said.
For counts of violating the First Amendment and Fourteenth Amendments to the U.S. Constitution, 42 U.S.C. Section 1983 and Titles IV and VII of the Civil Rights Act of 1964, the plaintiff is seeking a long list of reliefs:
• Declaring that District’s disciplinary action against A.F. for his out-of-school speech violated A.F.’s rights under the First and Fourteenth Amendments to the U.S. Constitution;
• Declaring that the policies in the District’s Student Handbook, on their face, violate the First and Fourteenth Amendments to the U.S. Constitution because they are overbroad and punish lawful protected speech;
• Declaring that the policies in the District’s Student Handbook that have been used, and may be used, to punish out-of-school speech are unconstitutionally vague, and thereby violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution;
• Enjoining the District from any continuing punishment or sanction against A.F. on account of his constitutionally protected speech, including reinstating A.F. to the Ambridge High School football team and expunging from A.F.’s school records all references to the incident in question;
• Awarding the plaintiff damages in an amount to be determined at trial;
• Awarding the plaintiff costs and reasonable attorneys’ fees pursuant to 42 U.S.C. Section 1988; and
• Granting such other relief as this Court deems just and appropriate.
The plaintiff is represented by Erik M. Yurkovich in Wexford.
The defendant is represented by Joseph W. Cavrich and Salvatore Bittner of Andrews & Price, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-01051
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com