Nonsignatories May Enforce Arbitration Agreement

AuthorKelso L. Anderson
Pages22-23
Published in Litigation News Volume 47, Number 3, Spring 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any
form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.
Schools Cannot
Regulate Student
Speech Made O
Campus
By Leslie R. Sni der, Litigation News
Contributing Editor
The U.S. Supreme Court has held that
public schools generally cannot regu-
late student speech made outside
of school-owned or school-operated
property. Public schools may have suf-
f‌icient interests to regulate o-campus
student speech in some circumstances,
but the student’s First Amendment
rights prevailed over such interests in
this case. ABA Litigation Section lead-
ers categorize the decision as progres-
sive and long overdue, and necessary
to ensure that the full scope of student
constitutional rights are protected.
After a student failed to make her
high school’s varsity cheerleading
team, she posted a picture of herself to
Snapchat captioned “[f]*** school f***
softball f*** cheer f*** everything” with
her middle f‌inder raised. The student
was disciplined for allegedly violating
school and team policies regarding use
of foul language and tarnishing of the
image of the school.
The student sued the school dis-
trict in the U.S. District Court for the
Middle District of Pennsylvania, raising
three claims under 42 U.S.C. § 1983. The
district court granted summary judg-
ment in favor of the student, ruling that
the student’s post was “o-campus
speech,” “had not caused any actual or
foreseeable substantial disruption of
the school environment,” and thus was
not subject to discipline. As a result,
the student’s speech was protected by
the First Amendment. The Third Circuit
Court of Appeals armed, even while
recognizing that its ruling conf‌licted
with prior applications of U.S. Supreme
Court precedent.
The Supreme Court armed, hold-
ing that while school districts may have
a special interest in regulating some
o-campus student speech, those inter-
ests were not sucient to overcome
this student’s First Amendment rights.
The Court noted that the student’s post
was made from a location outside of
school grounds and outside of school
hours. The post came from a private
device to a closed Snapchat group, and
it did not identify the school or any of
its administration or sta.
The Court rejected the school dis-
trict’s proered interests of teach-
ing good manners and preventing
disruption, noting that the student
spoke outside of school on her own
time and that the impacts of the post
within the classroom were minimal
and short-lived. It was also unmoved
by the school district’s claimed inter-
est in maintaining cohesion among the
school’s cheerleading squad.
Public schools’ ability to regulate
student o-campus speech should
be limited. “Many schools argue they
have the long arm authority to regu-
late o-campus speech, even to the
extent to when students are on their
own time and devices,” explains Dr.
Jonathan W. Peters, Athens, GA, chair
of the First Amendment Subcommittee
of the Litigation Section’s Civil Rights
Litigation Committee. “Students in out-
of-school settings are not second-class
citizens and should enjoy the same
First Amendment rights as those not in
school,” he opines.
“A school’s ability to control speech
should not be extended to a stu-
dent’s every waking hour, meaning
they would not be aorded the same
speech protections as every other
American,” agrees Frank D. LoMonte,
Gainesville, FL, professor and director
of the Brechner Center for Freedom
of Information at the University of
Florida College of Journalism and
Communications, who submitted
an amicus brief in B.L. and is a for-
mer leader in the ABA’s Forum on
Communications Law.
Students should have the right
to express themselves, even when
it is oensive to others. “The world
needs to start paying attention to
individual freedoms and how lack
of access to such freedoms aects
the world we live in,” states James
D. Abrams, Columbus, OH, member
of the Section’s Access to Justice
Committee. “Vulgar language may be
oensive to some but could be part
of another’s everyday vernacular,”
Abrams contends. “Having the option
to bypass social media posts contain-
ing vulgar language does not rise to
the same level of harm as being com-
pelled to hear vulgar language when
subjected to the conf‌ines of a class-
room,” asserts Abrams.
Nonsignatories May
Enforce Arbitration
Agreement
By Kelso L. Ande rson, Litigation News
Associa te Editor
The U.S. Supreme Court has held that
a company that did not sign an arbi-
tration agreement may nevertheless
invoke the doctrine of equitable estop-
pel to compel arbitration in GE Energy
Power Conversion France SAS Corp.
v. Outokumpu Stainless USA et al. The
case involved an international arbitra-
tion governed by the Convention on
the Recognition and Enforcement of
Foreign Arbitral Awards. According
to ABA Litigation Section leaders, the
Court’s interpretation brings the United
States in line with other jurisdictions
allowing nonsignatories to enforce an
arbitration agreement, which should
make the United States an attractive
forum for foreign parties.
In GE Energy Power, ThyssenKrupp
Stainless USA, LLC, entered into three
contracts with F.L. Industries, Inc., for
construction of cold rolling mills. All
the contracts had identical arbitra-
tion clauses stating, in part, that “all
disputes arising between both parties
in connection with or in performance
of the Contract . . . shall be submit-
ted to arbitration for settlement.”
Subsequently, F.L. Industries entered
into a subcontractor agreement with
GE Energy, and ThyssenKrupp was
acquired by Outokumpu Stainless.
After motors designed for the mills
failed, Outokumpu Stainless sued GE
Energy Power.
GE Energy Power moved to dismiss
the case and compel arbitration based
on 9 U.S.C. § 205, which provides
for removal where an arbitration or
award emanates under the convention.
Reasoning that under the convention,
both the plainti and the defendant
were parties to the arbitration agree-
ment, the U.S. District Court for the
Southern District of Alabama granted
the plainti’s motion.
22 | LITIGATION SECTI ON
THE LATEST DEVELOPMENTS IN LITIGATION
NEWS & ANALYSIS

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT