Should Acquittals Require Unanimity?

SHERRY F. COLB

Cornell law professor Sherry F. Colb considers the policy question of whether, since the Constitution requires jury unanimity to convict a defendant of a serious crime, states should require a unanimous verdict to acquit a defendant, as well. Colb describes the reasons behind jury unanimity convictions and assesses whether they apply similarly to acquittals.

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B.L. v. Mahanoy Area School District

Docket: 19-1842

Opinion Date: June 30, 2020

Judge: Krause

Areas of Law: Civil Rights, Constitutional Law, Education Law

B.L., as an MAHS freshman, was on the junior varsity cheerleading squad. The next year, she was again placed on JV. An incoming freshman made the varsity team. B.L took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story that was visible to about 250 “friends.” The caption stated: “Fuck school fuck softball fuck cheer fuck everything.” A teammate took a screenshot and sent it to a cheerleading coach. Another coach stated that: “Several students” had approached her, “visibly upset” about the snaps. The coaches decided B.L.’s snap violated team and school rules, which required cheerleaders to “have respect for [their] school, coaches, . . . [and] other cheerleaders”; avoid “foul language and inappropriate gestures”; and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches . . . on the internet.” The coaches removed B.L. from the team. School authorities upheld the decision. B.L. filed suit under 42 U.S.C. 1983. The Third Circuit affirmed summary judgment in B.L.’s favor. B.L. did not waive her speech rights by agreeing to the team’s rules; her suspension from the team implicated the First Amendment even though extracurricular participation is merely a privilege. B.L.’s snap was off-campus speech and had not caused any actual or foreseeable substantial disruption of the school environment.