By Emily Gold Waldman. Full Text.
Extracurricular activities have been the battleground for a striking number of Supreme Court cases set at public schools, from cases involving speech to religion to drug testing. Indeed, the two most recent Supreme Court cases involving constitutional rights at public schools—Kennedy v. Bremerton School District (2022) and Mahanoy Area School District v. B.L. (2021)—both arose in the extracurricular context of school sports. Even so, the Supreme Court has never fully clarified the status of extracurricular activities themselves. Once a school offers an extracurricular activity, is participation merely a privilege? Does the fact that extracurricular activities are voluntary for students affect how their constitutional rights play out there? Where do coaches’ and other extracurricular advisors’ own constitutional rights fit in? The Supreme Court has not explicitly answered these questions, and its implicit answers have varied.
This Article brings the key constitutional questions about extracurricular activities from the background to the foreground. It analyzes Mahanoy and Kennedy through the lens of extracurricular activities, showing that here, too, there is inconsistency. The decisions converged in terms of their outcomes—victories for the plaintiffs on their First Amendment claims against the school districts—but diverged in terms of recognizing the significance of extracurricular activities in students’ lives. The Article shows how the decisions’ inconsistency echoes that of earlier Supreme Court cases and leaves open questions about extracurricular activities that have been percolating in the lower courts for years. It then turns to psychological research about the significance of extracurricular activities in students’ lives. This research, which shows that extracurricular activities have major implications for students’ academic performance, drop-out rates, social/emotional development, mental health, likelihood of substance abuse, and risk of depression and suicide, points toward the need to take extracurricular activities seriously.
The appropriate way to conceive of extracurricular activities, the Article argues, is to view them as extensions of the school day, rather than minimizing them as “just” extracurriculars. This would have important implications for how students’ constitutional rights play out in the extracurricular setting. It would mean that punishing a student for her speech by excluding her from an extracurricular activity should trigger the same sort of robust First Amendment analysis that would apply to removal from a class. It would also make clear that the voluntary nature of extracurricular activities does not mean that religious coercion is less of a concern, or that reasonable expectations of privacy are lower. And it would highlight the need for limitations on a cur- rent practice among many school districts: using extracurricular activities as a lever to regulate out-of-school conduct, such as vaccination for COVID-19 or presence at gatherings where alcohol is served, that schools cannot regulate directly. Extracurricular activities are not “just” extracurriculars—and so they need to operate in a way that is just.