Can schools discipline students for offensive social media posts? The U.S. Supreme Court will decide in B.L. v. Mahanoy Area School District

by | Feb 22, 2021 | General, Student Education and Discipline

Written by: Liz Hudson

The U.S. Supreme Court recently agreed to hear a First Amendment case about student social media use related to extracurricular activities. In June, 2020, the Third Circuit Court of Appeals affirmed a lower court’s ruling in favor of a student who was removed from the cheer team after making offensive social media posts.  

Frustrated with her lack of advancement on the cheer squad, the freshman student posted to Snapchat “F*** school f*** softball f*** cheer f*** everything” to her 250 followers.When peers on the cheer team reported the message to a coach, the student was removed from the team, but later told she could try out again the following year. Her parents filed suit in a federal court on her behalf arguing that MAHS violated her First Amendment rights. 

The school district contends that U.S. Supreme Court precedent justified its disciplinary action, especially a school’s prerogative to discipline students’ use of vulgar or plainly offensive speech established in Fraser.1 School policy elevated expectations of behavior for student athletes, preventing them from tarnishing the school’s image. Furthermore, cheer team rules discouraged “foul language” and required students to act with respect for the school, coaches, and others on the team. Negative internet posts about cheer were also prohibited.  

The Third Circuit decided for the student because the Snapchat post was off-campus speech, and, thus, Fraser did not apply. It refused to give schools discretion to regulate vulgar speech in extracurricular activities while outside of school. The court also extended previous precedent — ultimately concluding that Tinker, which allows schools to discipline disruptive speech, “does not apply to off-campus speech.” The court determined that students’ vulgar social media posts about school or school activities fall outside parameters of school discipline. Though the court recognized possible discipline for violent posts, it punted that question to another day.  

On January 8, 2021, The U.S. Supreme Court agreed to hear the case. The question certified by the Court was: 

“Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”  

Legal arguments have yet to be filed, and oral arguments have not been scheduled. Look for updates from Ennis Britton as this case progresses. 

What does this mean for your district? 

Schools struggle to determine appropriate student social media regulation, and courts have offered conflicting First Amendment guidance. While the Third Circuit decision is not binding for schools in Ohio, the Supreme Court decision will be, and Ohio schools will have to abide by it when it is issued. In the meantime, Ohio schools should consider using restraint when disciplining students for social media posts outside of school, even those that could potentially disrupt the education environment or extracurricular activities. 

Ohio Court Upholds Picketing at Homes and Places of Employment of Public Officials

by | Jan 15, 2021 | General, Labor and Employment

The Ohio Court of Appeals for the Eleventh Appellate District recently addressed a dispute between the Portage County Educators Association for Developmental Disabilities-Unit B, OEA/NEA and the Portage County Board of Developmental Disabilities.   During a labor dispute, members of the union picketed on sidewalks outside the private residences of six Board members and outside the employer of one Board member.  The State Employment Relations Board (SERB) determined that was an unfair labor practice based on language in R.C. 4117.11(B)(7), which makes picketing related to a labor relations dispute at the residence or place of private employment of any public official an unfair labor practice.  

The union argued that the statute was an unconstitutional restriction on speech because the picketing in question took place on public sidewalks and streets.  Those are quintessential public forums where speech enjoys a great deal of protection.  

The court of appeals needed to first determine if the unfair labor practice statute was “content-based” or “content-neutral.”  Content-neutral restrictions enjoy intermediate scrutiny and are presumed valid.  Content-based restrictions are subject to strict scrutiny review and are presumed invalid.  In this case, the court found that the statutory restriction was content-based because it prohibited picketing in certain locations only when that picketing was related to a labor relations dispute. 

Given the determination that the statute was a content-based restriction on speech, the presumption of unconstitutionality could only be overcome by a showing that the regulation is (a) necessary to serve a compelling state interest; and (b) narrowly tailored to achieve that interest by the least restrictive means.  Ultimately, the court found that SERB failed to show that the statute served a compelling state interest or that it was narrowly tailored.  As a result, the court held that the statutory language was unconstitutional, and the union did not commit an unfair labor practice.

What this means for your District?

Picketing outside the homes or places of employment of school board members is permissible in certain counties in Ohio.  The Eleventh Appellate District has jurisdiction over Ashtabula, Geauga, Lake, Portage and Trumbull Counties.  This decision is binding in those counties.  The Eighth Appellate District, which serves Cuyahoga County, previously reached the same conclusion in 1998.  At least in those counties, an unfair labor practice will not be found if union members picket on public streets or sidewalks in front of board of education members’ homes or places of employment.  

The Seventh Appellate District reached the opposite conclusion in 2016.  Given the conflict among these courts, it is not clear throughout Ohio whether it is an unfair labor practice to picket outside the homes or places of employment of public officials.  It is possible that this decision will be appealed to the Ohio Supreme Court where a definitive answer can be had.  We will certainly update our clients if this case is appealed and decided by the Ohio Supreme Court.