The Oklahoma Bar Journal September 2022

of youth – an angry parent or insulted staff member demanding punishment for an online insult or critique will typically not rise to the level of intervention by the school district, as demonstrated in Mahanoy . However, speech that bullies, harasses or otherwise infringes on the rights of others can and should be regulated. Oklahoma law requires school employees to investigate reports of bullying and harassment, 33 even when the reported behavior occurs via electronic commu nication. School staff also have mandatory reporting require ments for threatening language or behavior “which reasonably may have the potential to endan ger students, school personnel or school property.” 34 School district personnel should be well-versed on district policies and laws regarding student speech, con sider the facts of each potential restriction of student speech and when weighing potential curtail ment of student speech, be able to articulate a reasonable forecast of substantial interference or disrup tion of the school environment or an infringement on the rights of others in the school community.

campus, outside of school hours, and it did not directly mention the school or target any students with harassing or bullying behav ior. 29 Though B.L.’s language was crude, there was “no evidence of any effort to prevent students from using vulgarity outside the classroom.” 30 Additionally, the school could prove no evidence of substantial disruption or decline in cheer team morale. 31 STUDENT SPEECH POST MAHANOY : WHERE DO WE GO FROM HERE? One of the goals of public schools is to teach civil discourse and debate while still allowing students to disagree and express unpopular opinions. Schools also strive to maintain a safe environ ment where students can be free to learn and grow without being harassed, bullied or threatened. The Supreme Court struck a bal ance in the Mahanoy case by reject ing the 3rd Circuit’s overly broad “location” rule and acknowledging that while the First Amendment protects student speech in most instances, schools do have the authority to regulate some types of student speech, even speech that occurs off campus. It is important to note that Tinker analysis still applies: “In Tinker , we indicated that schools have a special interest in regulating … student speech that materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” 32 When counseling school district clients regarding student speech issues, it is important to note that First Amendment pro tection for student speech should be the norm, not the exception. Absent a substantial disruption or invasion of the rights of others, school districts should be careful how they respond to speech that stems from the impulsiveness

ENDNOTES

1. 141 S.Ct. 2038 (2021). 2. Id.

3. See Tinker v. Des Moines Indep.Cmty. Sch. Dist. , 393 U.S. 503 (1969); Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675 (1986); Hazelwood Sch. Dist. v Kuhlmeier , 484 U.S. 260 (1988); Morse v. Frederick , 551 U.S. 393 (2007). 4. See Doniger v. Niehoff , 527 F.3d 41 (2d Cir. 2008); Kowalski v. Berkeley County Schools , 652 F.3d 565 (4th Cir. 2011); D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60 , 647 F.3d 754 (8th Cir. 2011); J.S. ex rel. Snyder v. Blue Mt. Sch. Dist. , 650 F.3d 915 (3rd Cir. 2011); Wynar v. Douglas County Sch. Dist. , 728 F.3d 1062 (9th Cir. 2013). 5. 393 U.S. 503 (1969). 6. Id. at 511. 7. Id. at 513. 8. Id. at 509. 9. Bethel Sch. Dist. No. 403 v. Fraser , 478 U.S. 675, 685 (1986). 10. Hazelwood Sch. Dist. v. Kuhlmeier , 484 U.S. 260, 271 (1988). 11. Morse v. Frederick , 551 U.S. 393, 409 (2007). 12. Monica Anderson and JingJing Jiang, “Teens, Social Media & Technology 2018,” Pew Research Center (May 31, 2018), https://tinyurl.com/4hzvcwma. 13. Id . 14. 141 S.Ct. 2038 (2021). 15. Id . at 2043.

16. Id . 17. Id . 18. Id . 19. Id . 20. Id . 21. Id . at 2044. 22. Id . 23. 964 F.3d 170, 189. (Judge Ambro,

concurring in the opinion, agreed that B.L.’s snap was not student speech that schools may regulate but declined to join the majority’s broad holding that Tinker does not apply to off-campus speech.) 24. Id . at 180. 25. 141 S.Ct. 2038, 2043. 26. Id. at 2046. 27. Id .

28. Id. at 2045. 29. Id . at 2047. 30. Id . 31. Id . at 2048. 32. Id . at 2039.

33. 70 O.S. §24-100.4. 34. 70 O.S. §24-100.8.

ABOUT THE AUTHOR

Hayley Jones is the associate general counsel for Oklahoma City Public Schools. She is a member and past president of the

Oklahoma School Board Attorneys Association and a member of the NSBA Council of School Attorneys. Ms. Jones is a 2015 graduate of the OU College of Law and a former public school teacher.

SEPTEMBER 2022 | 25

THE OKLAHOMA BAR JOURNAL