• Outlines a number of ways schools can promote vaccines among teachers, staff, families and eligible students.
• Recommends masks should be worn indoors by all individuals (age 2 and older) who are not fully vaccinated and notes that consistent and correct mask use by people who are not fully vaccinated is especially important indoors and in crowded settings, when physical distancing cannot be maintained.
• Provides that masks need not be worn outdoors; however, people who are not vaccinated should wear a mask in crowded outdoor settings or during activities that involve sustained close contact with other people who are not fully vaccinated.
• Recommends schools maintain at least 3 feet of physical distance between students within classrooms, combined with indoor mask wearing by people who are not fully vaccinated, to reduce transmission risk and notes that when it is not possible to maintain a physical distance of 3 feet, it is especially important to layer multiple other prevention strategies.

Today, the U.S. Supreme Court issued its ruling in Mahanoy Area School District v. B.L. With this case, the U.S. Supreme Court opined that Mahanoy Area School District violated B.L.’s First Amendment rights when it punished her for posting vulgar criticism of her cheerleading program via social media while outside of school. In order to put this opinion into context, below is a brief summary of the legal precedents leading up to today’s opinion, the facts of the Mahanoy case, and the implications of the Court’s ruling today.

Previous Free Speech Cases

When dealing with student free speech issues, one should always start with the premise that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). That being said, the U.S. Supreme Court has also stated that “[t]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings, and the Constitution does not compel school officials to surrender control of the American public school system to public school students.” Bethel Sch. Dist. No. 403 V. Fraser, 478 U.S. 675 (1986). Based on the holdings in Tinker and Bethel, the U.S. Supreme Court has previously opined that a school’s authority to discipline a student changes depending on whether the speech was conveyed at school or outside of school.

In-School Speech

Student speech occurring while in school, on school property, or at a school sponsored event can be disciplined as follows:

1. A public school may categorically prohibit vulgar, lewd, indecent, or plainly offensive speech. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986);
2. A public school may regulate speech related to the promotion of drug use. See Morse v. Frederick, 551 U.S. 393 (2007);
3. A public school may regulate speech appearing in a school-sponsored forum or a forum that appears school-sponsored (e.g., post to school’s twitter) when the speech is inconsistent with pedagogical concerns. See Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988); and
4. A public school may regulate speech that is reasonably likely to substantially and materially interfere with schoolwork or discipline. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

Out-of-School Speech

In general, a public school district can discipline student speech occurring off school property where the speech has a substantial nexus to the school and will interfere or disrupt schoolwork or discipline. For example, a district was not permitted to discipline a student for creating a fake MySpace profile of his high school principal from his grandmother’s home because there was not “a sufficient nexus between the speech and a substantial disruption of the school environment” since no classes were cancelled, no widespread disruption occurred, and there was no violence or student disciplinary action. Layshock v. Hermitage School District, 593 F.3d 249 (3d Cir. 2010). By contrast, a district was permitted to discipline a student for posting disparaging, sexual remarks about another student on MySpace from her home computer because the student’s speech interfered with and disrupted schoolwork, and the student could reasonably have expected that the content would reach the school and impact the school environment. Kowalski v. Berkeley County Schools, 652 F.3d 565 (4^th Cir. 2011)(citing Tinker).

Additionally, a public school can discipline student speech occurring outside of the school setting if the speech conveys a “true threat.” Speech conveys a “true threat” when the speaker reasonably could have foreseen that the speech would be perceived as a threat, or whether a reasonable recipient would perceive it as such. For example, a district can discipline a student for sending personal messages via MySpace to his friends threatening to shoot people at the school on a specific date because the messages constituted a “true threat” and the threat of a school shooting certainly qualified as speech that “might reasonably lead school authorities to forecast a substantial or material interference with school activities” or that collides with the rights of other students to be secure.” Wynar v. Douglas County School District, 728 F.3d 1062 (9^th Cir. 2013).

Summary of Facts in Mahanoy Area School District v. B.L.

In 2017, B.L. was a high school cheerleader in the Mahanoy Area School District. Toward the end of her freshman year B.L. tried out for the high school varsity cheer squad. Soon after learning that she did not make the team, she posted a snap (via the snapchat app) with a picture of herself and a friend sticking out their tongues and their middle fingers. The photo included the caption: “f*** school f*** softball f*** cheer f*** everything” (the original caption was not censored). Notably, B.L.’s snap was taken and sent on a Saturday, off school property, using her personal cell phone and her personal snapchat account.

One of B.L.’s friends who received the snap preserved it with a screenshot and showed it to her mother, who happened to be a cheer coach. Upon deliberation, the cheer coaches determined that the snap violated the cheerleading code of conduct (i.e., an extracurricular student code of conduct). As a consequence, B.L. was suspended from cheerleading for her entire sophomore year.

Ruling in Mahanoy Area School District v. B.L.

Today, the U.S. Supreme Court ruled that the Mahanoy Area School District violated B.L.’s right to freedom of speech when it suspended her from cheerleading for a year. In short, the Court applied the Tinker standard, and found “no evidence in the record of the sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify the school’s action.” In so ruling, the Court opined that it was not a substantial disruption for students to spend 5 to 10 minute discussing the post in algebra class over several days. Additionally, the Court’s opined that it was not a substantial disruption that other cheerleaders found the post upsetting. As additional support for its decision, the Court cited the following facts of the Mahanoy case:

• “[B.L.]’s posts appeared outside of school hours from a location outside of school.”
• “She did not identify the school in her posts or target any member of the school community with vulgar or abusive language.”
• “B.L. also transmitted her speech through a personal cellphone, to an audience consisting of her private circle of Snapchat friends.”

In general, the Court’s opinion emphasized that public schools have a diminished interest in disciplining out-of-school speech as compared to in-school speech. In supporting this general message, the Court articulated a few doctrinal statements that may be helpful for future cases. These statements include:

• “Geographically speaking, off-campus speech will normally fall within the zone of parental, rather than school-related responsibility.”
• “When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”
• “The strength of [the school’s] anti-vulgarity interest is weakened considerably by the fact that B.L. spoke outside the school on her own time.”
• “[T]he school itself has an interest in protecting a student’s unpopular expression” because “America’s public schools are the nurseries of democracy.”

Despite this general message, the Court did acknowledge that there are certain situations where a public school district has a significant interest in disciplining out-of-school behavior and/or speech. The Court’s list included:

• “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.”

In summary, the ruling in Mahanoy confirms that public school districts should continue relying on the Tinker standard when determining whether it has the authority to discipline out-of-school speech – i.e., there must be a substantial nexus to the school and evidence that the speech will interfere or disrupt schoolwork or discipline. Additionally, the Court’s opinion makes it clear that public schools’ decisions to discipline out-of-school speech will be harshly scrutinized by courts, particularly where there is not clear evidence of a substantial disruption or the speech does not fall into one of the four significant interest categories set forth by the Court.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys at (614) 222-8686, or via email.

Signing of S. 475

Yesterday afternoon, President Biden signed Senate Bill 475 officially declaring June 19^th a federal holiday named “Juneteenth National Independence Day” to commemorate the anniversary of the Union Army arriving in Galveston, Texas to take control of the state and enforce the freedoms granted by the Emancipation Proclamation (signed about 2.5 years earlier).

Soon after the President signed the bill into law, there were questions as to whether federal employees would be able to observe the federal holiday in 2021. Since June 19^th falls on a Saturday this year, its first day of observance as a federal holiday is today – June 18, 2021. However, the U.S. Office of Personnel Management (essentially the federal government’s HR department) announced yesterday that “most federal employees will observe the holiday tomorrow, June 18th.”

How Does This Affect Ohio Public Schools?

This all begs the question, are Ohio public school districts required to treat today as a paid holiday? The short answer is no – unless your district has obligated itself to observe all federal holidays through board policy or a collective bargaining agreement.

Legal Analysis for Ohio Public Schools

Ohio public school districts are required to observe certain paid holidays. See R.C. 3319.087. The statute requires school districts to pay all regular nonteaching school employees (whether salaried or hourly) their regular salary or regular rate of pay for certain enumerated holidays. The list of holidays differs slightly depending on whether the employee maintains an eleven / twelve month contract, a nine / ten month contract, or a contract for fewer than nine months. Below is a list of the paid holidays Ohio public schools are required to observe:

• Eleven & Twelve Month Regular Nonteaching Employees: New Year’s day, Martin Luther King day, Memorial day, Independence day, Labor day, Thanksgiving day, and Christmas day.
• Nine & Ten Month Regular Nonteaching Employees: New Year’s day, Martin Luther King day, Memorial day, Labor day, Thanksgiving day, and Christmas day.
• Fewer than Nine Month Regular Nonteaching Employees: Entitled to any of the above listed holidays which fall during the employee’s time of employment.

When a regular nonteaching employee is required to work on any of the above-listed paid holidays, the statute requires the District to grant compensatory time off to that employee for which she shall be paid her regular salary or her regular rate of pay.

While R.C. 3319.087 lists up to seven required paid holidays, it also permits school districts to declare additional paid holidays. In practice, if districts choose to grant additional paid holidays, it is achieved through a collective bargaining agreement or board policies. As such, we recommend that districts review the language in classified collective bargaining agreements and related board policies to determine if the district has an obligation to observe this newly established federal holiday.

As always, please contact any of our attorneys is you have additional questions or want assistance reviewing your collective bargaining agreement(s) or board policies.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys on our cell phones, at (614) 222-8686, or via email.

COVID-19 Vaccination of School Employees

Adult school employees are included in Phase 1B of Ohio’s vaccination plan, which is expected to begin on February 1, 2021. Phase 1B vaccination efforts prioritize employees of school districts that intend to be in or return to in-person or hybrid learning by March 1, 2021. To identify those school districts, the Ohio Department of Education created a Commitment to Return to In-Person or Hybrid Learning Form (“Commitment Form”), which is available on ODE’s Reset and Restart website.

Superintendents must sign and submit the Commitment Form to schools@odh.ohio.gov by Monday, January 18, 2021 to be prioritized during Phase 1B. Superintendents who submit the Commitment Form are expected to indicate the number of staff they believe will take the vaccine and whether a community partner has been identified to help administer the vaccines to school personnel.

Does your district’s plan meet the definition of “in-person” or “hybrid” learning?

Most likely yes, as long as it includes some aspect of in-person learning. The Commitment Form provides the following definitions:

• In-Person Learning: a district is in an “in-person learning” model if “all students have the option of in-person instruction, even if schedules are somewhat adjusted.”
• Hybrid Learning: a district is in a “hybrid learning” model if it is using “a mix of in-person and remote education.” Hybrid models come in many forms, such as “two consecutive (or nonconsecutive) days a week in-person, alternate weeks in-person, or selected grade ranges or schools as fully remote or fully in-person.” A district may be using a hybrid model even if “some grade levels are entirely in-person or entirely remote.”

Does a superintendent need the board of education’s approval to sign the Commitment Form? 

No, unless the district wishes to change a learning model that was previously approved by the board before the superintendent signs and submits the Commitment Form to ODE (for example, if the board previously approved a fully remote model, but the district now wishes to transition to hybrid or in-person learning).

Can an employer require employees to get the COVID-19 vaccine? 

In short, yes. The U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance advising that the Americans with Disabilities Act (“ADA”) does not prohibit employers from requiring employee vaccinations, as long as the employer first determines that an unvaccinated employee would “pose a direct threat to the health or safety of individuals in the workplace” (see Question K.5).  Despite this guidance, a school district will likely have an obligation to collectively bargain with the applicable labor union before adopting such a rule. Additionally, if individual employees object to a vaccine requirement for disability or religious reasons, the district would be required to engage in an interactive process and provide reasonable accommodations to qualifying employees.

While school districts may have the option to mandate employee vaccinations, whether a school district should require vaccinations is a thornier issue to be carefully considered by the board in consultation with legal counsel.

How will you count the number of employees willing to be vaccinated? 

As described above, districts that complete the Commitment Form will be expected to indicate the number of staff they believe will take the vaccine, which will impact the number of vaccines allotted to the district. One way to calculate this number is through an employee survey. The EEOC has issued guidance advising that the ADA does not prohibit employers from asking employees whether they plan to or have already received the vaccine.

As a reminder, issues related to COVID-19 are fluid and subject to rapid change. Additional information about Coronavirus and the State’s response can be found here.

This communication is intended as general information and should not be relied upon as legal advice. If legal advice is required, please contact any of our attorneys on our cell phones, at (614) 222-8686, or via email.