Navigating the First Amendment in the Digital Age: U.S. Supreme Court Tackles Social Media Blocking Cases

Navigating the First Amendment in the Digital Age: U.S. Supreme Court Tackles Social Media Blocking Cases

In the ever-evolving landscape of the digital age, the U.S. Supreme Court recently delved into the complexities of First Amendment issues surrounding public officials’ use of social media. Two cases brought before the Court raised crucial questions about the boundaries of free speech and the authority of public officials in the realm of online communication.

The heart of the matter in both cases revolved around public officials, one notably involving school board members, who had taken to blocking constituents on their personal social media pages. As the blocked individuals initiated legal challenges, the central inquiry focused on whether these officials were acting within the scope of their authority. This crucial distinction is essential, as acting within the scope would implicate viewpoint discrimination, a practice explicitly prohibited by the First Amendment.

A fundamental challenge emerged during the arguments: the delicate task of differentiating between state action and private action in the context of social media. The digital realm blurs the lines, presenting a unique challenge for public officials and employees.

The difficulty lies in devising a clear test that effectively distinguishes between state and private action in the social media sphere. Public officials may have established their social media presence before assuming public office, posting personal, non-governmental content alongside occasional updates relevant to their public duties. This multi-faceted use of social media raises the question of where the line is drawn between personal expression and official capacity.

An attorney representing the school board members emphasized a critical point—the social media pages in question belonged to the individual board members, not the school district. However, the Justices appeared skeptical of this argument. Justice Roberts challenged the physicality of a Facebook page, likening it to a mere “gathering of protons,” while Justice Thomas questioned whether a social media page truly belongs to the individual or the platform hosting it.

The Supreme Court is set to deliver a decision by June 2024. The outcome of these cases will significantly shape the landscape of free speech in the digital age and set important precedents for the use of social media by public officials and employees. We will be sure to update our clients when a decision is issued.





























































































































































































































































































































































































































































































Special Education Update: DOE Issues Letter on Military-Connected Children with Disabilities

Special Education Update: DOE Issues Letter on Military-Connected Children with Disabilities


On November 9, the United States Department of Education released a letter on military-connected children with disabilities. The letter highlights the additional challenges that families of military-connected children with disabilities may face due to frequent separation and disruptions in the continuity of IDEA services.

The letter additionally shared a list that the Department of Education created that combined resources from across the Federal government for parents and families of military-connected children with disabilities. The list includes several resources, such as the 2023 IDEA general supervision guidance, OSEP’s 2022 letter on education for highly mobile children, and guides from organizations such as the Military Child Education Coalition. The letter stated that this list offers a “clear explanation of the procedures every military-connected family with a child who is eligible for or receiving IDEA services should expect from the education system when they move from one jurisdiction to another.”

Finally, the letter noted that for military-connected children with disabilities, transitions are inevitable. Still, with the help of Expect, Engage, and Empower: Successful Transitions for All!, OSEP can provide resources for families facing the transition to adulthood.















































































































































































































































































































































































































































































Virtual Meetings and Hearings Get Another Consideration

Virtual Meetings and Hearings Get Another Consideration

Over the summer, members of the Ohio House introduced HB 257 to make permanent the ability for school board members and other public officials to attend meetings of the public body and to hold administrative hearings by virtual means. The bill, which was referred to the Committee on Government Oversight in September, would revive COVID-era authority to meet and conduct official government business by virtual means, with the added bonus of conducting administrative hearings virtually as well. Compliance, notice, and accessibility to the stream are part of the proposed legislation, along with a requirement for express adoption of a board policy to permit remote action. Additionally, the legislation as proposed may require up to one-third of the board members to attend in person at an agreed-upon physical location and those attending remotely would be required to provide timely notice of that intention. The bill is still in its infancy but is one to watch in the future.

What this means for schools – If enacted, this bill will expand options for boards of education in their conduct of official business.






























































































































































































































































































































































































































































CTC Corner: Ohio Governor Announces Career Technical Construction Grant Recipients and New Equipment Funding Opportunity

CTC Corner: Ohio Governor Announces Career Technical Construction Grant Recipients and New Equipment Funding Opportunity

On November 3, 2023, the Governor announced 35 recipients of $200 million in grant funds for constructing new space for career technical programming enabling more students to receive vocational education in industries such as Agriculture, Construction, Healthcare, IT, manufacturing and more. Among the recipients were JVSDs, Comprehensive Districts, and Compact Districts.  The 35 recipients were selected from among 59 applicants.

Additionally, a new equipment funding opportunity was announced and the application window for that grant is currently open until December 15. 2023. The purpose of the Ohio Career Technical Education Equipment Grant Program is to award competitive grants to schools to establish or expand Career Technical Education (“CTE”) programs, with priority for programs that support careers on Ohio’s Top Jobs List and establish or expand credentialing programs from the Governor’s Office of Workforce Transformation Innovative Workforce Incentive Program list.  Eligible applicants are defined as city, local and exempted village school districts, community schools, Science, Technology, Engineering and Mathematics schools and joint vocational school districts. Eligible applicants “must plan to offer a qualifying CTE program that supports a career on Ohio’s Top Jobs List or a qualifying credential program from the Governor’s Office of Workforce Transformation Innovative Workforce Incentive Program list,” according to the request for applications published by the Department of Education and Workforce. 

Priority will be given to applicants with less than 10% of the student body reported as “CTE concentrators.” A CTE concentrator is a student who has completed at least two CTE courses in a single approved career pathway or program of study. Priority will also be given to applicants proposing programs in priority industry areas, such as advanced manufacturing and telecommunications. 

The request for Applications and additional instructions can be found here.















































































































































































































































































































































































































































































Special Education Update: HB 33 Impacts Options & Obligations for Special Needs Students

Special Education Update: HB 33 Impacts Options & Obligations for Special Needs Students

The Ohio Budget Bill was signed by Governor DeWine on July 2, 2023. While the spending provisions were effective immediately, substantive changes to the law become effective October 3, 2023. Within these new and amended laws are several provisions that not only impact students with disabilities but will likely expand school district’s obligations to this student population.

Jon Peterson Scholarship applicants can expect more money in the coming years. Most categories of disabilities will see increases the subsidy provided over the next two years.

The Autism Scholarship saw more significant changes from permissible providers to access to scholarship dollars.

  • In the area of behavioral services, families availing themselves of the Autism Scholarship can now access BCBA and behavioral technician services, even when the providers do not possess permits to provide such services in a facility or a home.
  • Additionally, students accessing the scholarship will no longer need a school identification of autism. Students will be eligible if a medical professional diagnoses the student with autism, or if the student has an IEP that calls for services “related to autism.” In the event the student is medically diagnosed but does not have an IEP, the responsible school district must develop an education plan for that student to address the diagnosis.

“Catastrophic” costs are no longer reflected in the special education budget. Schools can continue to seek additional costs of services that exceed the category’s funding threshold, but they will no longer be identified as “catastrophic” costs. It is anticipated that this change is more in the name than in the actual amount of funding received.

Seizure action plans are another new requirement. Designated school employees must develop a seizure action plan for affected students and provide training on the plan to relevant staff. Likewise, Districts must ensure that at least one staff person in each building is trained in such plans every two years. Additionally, district administrators, school counselors, teachers and bus drivers must complete training in the bill’s new requirements. 

Public schools are now required to provide transportation as a related service to any resident student with a disability attending a nonpublic school. This particular requirement is vaguely drafted and the Ohio Department of Education has not yet issued any clarification, nor are there any applicable regulations. It is best to consult with legal counsel to develop an appropriate response to any new requests for transportation related to this change.

Finally, the Ohio Department of Children and Youth Services will assume most of the oversight of preschool education. A full transfer is duties is expected by January 1, 2025.

 What this means for schools – As with all other education related budget considerations, these changes in laws will require careful oversight and timely consideration. Stay tuned for further updates on the implementation of many of these new and revised requirements.











































































































































































































































































































































































































































































Sixth Circuit Sides with Parent in Free Speech Case

Sixth Circuit Sides with Parent in Free Speech Case

McElhaney v. Williams (August 25, 2023).

In a late August decision , the Sixth Circuit reversed a District Court’s decision, finding in favor of a parent’s First Amendment rights, and sending a message to schools and their athletics staff regarding how they ban parents from property and events.

A school district in Tennessee found itself in federal court after it suspended a parent from attending a week’s worth of softball games. The parent, whose child played on the high school softball team, sent two lengthy texts to the coach discussing his frustration after the coach had benched his child. Subsequently, the school banned the parent from attending any softball games the following week after finding that the text messages were inappropriate and violated team policy. The parent sued the district, arguing that the district retaliated against him for exercising his constitutionally protected right to free speech.

Reviewing the District Court’s opinion, which sided with the school, the Sixth Circuit stated that the First Amendment has long protected citizen’s right to criticize public officials. The Sixth Circuit elaborated that that protection extends to parents, meaning that “schools cannot regulate the content of the parents’ speech about their child to a school employee who interacts with the child.”

The school district argued that schools have an interest in avoiding disruption, and the Sixth Circuit agreed; however, it stated that the school’s interest does not apply “to run-of-the the mill adult speech targeting school officials.” Additionally, the district argued that it had an informational sheet that it had sent out, which specifically stated that parents and coaches were not allowed to discuss playing time. However, the Sixth Circuit found that an information sheet does not override a parent’s constitutional rights. In the end, the Sixth Circuit found the speech was critical of a coach’s actions, but the speech was not threatening, harassing or disruptive, and, therefore, was protected by the First Amendment.

What does this mean for your district?

The Sixth Circuit was clear in the conclusion of its opinion:
“in this situation, it is clearly established at a low level of generality that a school official may not retaliate against the parent for the content of his speech.”

Districts should be aware that even if a school or team policy bars parents and coaches from discussing playing time, parents maintain a constitutionally protected right to address their concerns provided they do so in a non-harassing, non-threatening and non-disruptive manner. Districts should educate their staff on parents’ free speech rights, especially when it comes to parents’ right to air grievances regarding their student-athletes.