U.S. Supreme Court - Off-Campus Student Speech
First, on June 23, 2021, the U.S. Supreme Court decided the case of Mahanoy Area School District v. B.L., finding that a Pennsylvania school district violated the First Amendment rights of a student, B.L., when it suspended her from cheerleading based on her off-campus social media posts. After the student did not make the varsity cheerleading team, she posted two images on Snapchat accessible to her Snapchat “friends” using vulgar language and gestures. The posts were made off-campus and on the weekend. Some of her Snapchat “friends” were other district students and members of the cheerleading squad. One of her Snapchat “friends” took a screenshot of B.L.’s Snapchat post and shared it with members of the cheerleading squad. From there, one student showed the images to her mother, who was a cheerleading coach and ultimately several cheerleaders and other students approached the cheerleading coaches “visibly upset” about the posts. Discussion of the posts continued during class for about 5-10 minutes for “a couple of days”.
The coaches discussed with the principal and decided that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules. Accordingly, the coaches suspended B.L. from the junior varsity cheerleading team for the year. B.L. and her parents sued, alleging that the school improperly punished B.L. for her speech that was protected by the First Amendment.
In an 8-1 decision, the Supreme Court sided with the student and found that the suspension violated her First Amendment rights. In its decision, the Court created some parameters on when public school districts can discipline students for off-campus speech. The Court started with the long-standing rule established under the Supreme Court case of Tinker v. Des Moines Dependent Community School Dist., that school districts have a “special interest” in regulating on-campus student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” Yet the Court found that, when addressing student off-campus speech, this standard is limited for three reasons: (1) the school is not typically acting in the place of the parents (in loco parentis) since, based on geography, off-campus speech normally falls within the zone of parental, rather than school-related, responsibility; (2) regulating off-campus speech, coupled with the existing regulations of on-campus speech, would amount to control over all the speech a student utters 24/7, which requires courts to be more skeptical of a school’s efforts to regulate off-campus speech; and (3) the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus.
Yet the Court did not preclude schools from ever regulating off-campus student speech, going so far as to note that schools’ “regulatory interests remain significant in some off-campus circumstances.” The Court identified factors or situations that strengthen a school district’s regulatory abilities, including serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.
School districts should carefully review the factors identified by the Supreme Court when off-campus incidents arise, to ensure any potential discipline is not violative of the First Amendment.
Ohio Supreme Court - Arming School Employees
On the same day, the Ohio Supreme Court held that school staff members must satisfactorily complete an approved basic peace-officer-training program or have 20 years of experience as a peace officer prior to being permitted to be armed while on duty at school. Prior to this ruling, the rules on arming school employees were unclear, with no direct legislation relating to arming teachers and a 2013 letter from then-Attorney General Mike DeWine that stated that “Ohio law does not prevent a local school board from arming an employee, unless that employee’s duties rise to the level that he/she would be considered ‘security personnel,’” in which case the employee would be required by statute to have specific training or experience.
This case, Gabbard v. Madison Local School Dist. Bd. of Edn., arose because the Board of Education passed a resolution authorizing certain school district employees to carry a deadly weapon or dangerous ordnance on school property “for the welfare and safety of [its] students.” Numerous school districts around the state passed similar resolutions in an effort to define the carrying of weapons by staff at school. In response to the resolution, five parents filed a lawsuit against the Board stating that the resolution violated Ohio law that requires school employees authorized to carry weapons to complete an approved basic peace-officer-training program or have 20 years of experience as a peace office.
The Court agreed with the parents, holding that ORC 109.78, which states that a district shall not employ a person as a “special police officer, security guard, or other position in which such person goes armed while on duty” unless that person has completed a peace officer training program or has 20 years of active duty as a peace officer, was unambiguous and applicable to school district employees. Specifically, the Court held that the provision in the statute regarding “other position in which the person goes armed while on duty” is applicable to school district employees, regardless of whether being armed is part of the employee’s job duties and regardless of whether they volunteer to be designated to carry a weapon. The Court also looked to ORC 2923.122, which criminalizes the possession in or conveyance into a school safety zone of a deadly weapon or dangerous ordnance, except by persons who act in accordance with written authorization from a board of education. The Court found that ORC 2923.122(D)(1)(a) does not clearly constitute a legislative grant of power for school boards to authorize their employees to go armed so long as the employees undergo whatever training a board might deem advisable, and does not otherwise change the requirements the Supreme Court found applicable from ORC 109.78.
Based on this decision, schools are prohibited from employing a person who goes armed while on duty in his or her job unless the employee has satisfactorily completed an approved basic peace-officer-training program or has 20 years of experience as a peace officer. Districts that passed resolutions contrary to this ruling must now ensure that all armed staff members meet these requirements.
Sixth Circuit Court of Appeals - Public Participation at Board Meetings
Two weeks later, the Federal Sixth Circuit Court of Appeals, which encompasses Ohio, decided another case involving Madison Local School District, Ison, et al. v. Madison Local School Dist. Bd. of Edn., regarding the Board’s public participation policy.
While the Board generally allowed time for community members to speak during every Board meeting, it enacted a Public Participation Policy with specific requirements for participation, including that: only Madison residents could participate in Board meetings, anyone wishing to participate must complete a “public participation form,” in person, at least two business days before the meeting, participants must limit their speaking time to three minutes, and must address the presiding officer, not Board members individually. The Policy also authorized the presiding officer to:
prohibit public comments that are frivolous, repetitive, and/or harassing;
interrupt, warn, or terminate a participant’s statement when the statement is too lengthy, personally directed, abusive, off-topic, antagonistic, obscene, or irrelevant;
request any individual to leave the meeting when that person does not observe reasonable decorum; [and]
request the assistance of law enforcement officers in the removal of a disorderly person when that person’s conduct interferes with the orderly progress of the meeting.
The Public Participation Policy was challenged by four community members who, after a 2016 shooting at Madison Local School District, began attending Board meetings to address their concerns about the Board’s handling of gun-related issues. The pre-registration requirement of the policy was used twice to prevent the community members from speaking at a meeting, and the authority of the presiding officer to manage the content of participants’ speech was also used to interrupt one of the community members during a meeting. In their suit, the community members alleged that the Board had violated their First Amendment rights. Specifically, the court looked at three things: (1) whether the policy’s restrictions on “personally directed,” “abusive,” and “antagonistic” statements, and the application of those restrictions, discriminated based on viewpoint and were unconstitutionally applied to silence one of the plaintiffs; (2) whether the in-person preregistration requirement for public participation impermissibly prevented individuals from speaking; and (3) whether the policy itself, and the Board’s discretion in implementing it, was unconstitutionally vague.
The Court began by examining the forum in which the speech occurred - here, a Board of Education meeting. Such board meetings have been established to be “limited public forums”, meaning the meetings are “limited to use by certain groups or dedicated solely to the discussion of certain subjects.” In a limited public forum, the government may institute reasonable time, place, or manner restrictions on speech, provided the restrictions are unrelated to the content of the speech. Such restrictions must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information.
The Court first looked to whether the Policy’s restrictions on “abusive,” “personally directed,” and “antagonist” statements impermissibly discriminated based on viewpoint. The Court found that the restrictions prohibit speech purely because the speech disparages or offends, and that the Board had used these Policy provisions to stop individuals from speaking for these reasons. Specifically, the Board President testified that he stopped one of the plaintiffs from speaking once he started offending people. Therefore, the Court held that these terms in the Policy were per se unconstitutional and that their application to the plaintiffs constituted impermissible viewpoint discrimination.
Regarding the other two allegations, the Court found that the in-person preregistration requirement was permissible because it was content-neutral and narrowly tailored to serve the Board’s interest of reserving time for those individuals who were mostly likely to follow through and participate in the meeting. The Court also found it was permissible for the policy to give the presiding officer discretion to interpret “reasonable decorum,” although noting that it had already struck down the presiding officer’s discretion to institute “abusive” and “antagonistic” restrictions.
Boards of education should assess their current policies regarding public participation at board meetings to ensure they are compliant with the Court’s holding.