Michelle H. BasiBackground
School administrators know the familiar refrain that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” from the Supreme Court’s precedent in Tinker v. Des Moines, 393 U.S. 503(1969). In Tinker, students wore black armbands to school to protest the Vietnam War. The Court overturned the school district’s decision to suspend the students, finding that their speech was protected by the First Amendment and did not “materially disrupt classwork or involve substantial disorder.” Id. at 513.
But what do the lessons of Tinker mean for school administrators today? Students across the nation are planning protests and “walk outs” in the wake of the school shooting in Parkland, Florida. Social media provides a quick and effective way for students to coordinate with each other, but also with members of the community who want to support their cause. And social media provides a means for quick backlash against a school when students and/or the community feel that a student protest was not well handled by the school. Therefore, this article is intended to provide administrators with some brief guidelines and issues to consider as you prepare for possible actions at your school.
As an initial matter, it is important to remember the types of speech that school officials may regulate: (1) speech that materially disrupts the school setting or interferes with the rights of others; (2) speech that is lewd, vulgar or obscene; (3) speech that is school-sponsored, as long as the regulation is reasonably related to the school’s legitimate pedagogical concerns; and (4) speech that promotes illegal activities, such as illegal drug use. Generally, a student protest or walk-out is speech that can be restricted to the extent that it materially disrupts the school setting or interferes with the rights of others. When acting to restrict student speech, school officials must also ensure that they are acting in a viewpoint-neutral manner, not promoting one particular viewpoint or message over another.
Clothing/Symbols
Much like in Tinker, students may choose to wear clothing or symbols (pins, bracelets, etc.) intended to convey a message on a particular day or for a particular period of time. Unless the clothing or symbols worn are disruptive ““ or are reasonably likely to cause a substantial disruption ““ in the school setting, school officials cannot restrict this type of protest by students. Whether a particular symbol or message is substantially likely to cause a disruption will depend on great part on the content of the speech itself, the time, place and manner of the speech, the student’s intent in making the speech, the reaction of others, and the current environment in the community. It is important to note, however, that as a school official justifying the need to restrict the speech, you must be able to that your action was “caused by something more than the desire to avoid the discomfort and unpleasantness that always accompany an unpopular view point.” Id. at 509. Of course, if the clothing or symbol bears a message that is threatening toward a student or group of students, a court is more likely to uphold a school’s restriction of that speech.
On-Campus Gathering Outside School Hours
Students and/or community members may organize protests to occur before or after school on school grounds. Whether a school must allow this will depend on the school’s rules regarding students being present on campus before and after school, and how similar events have been treated in the past. For example, if students are permitted to be on campus for an unstructured period of time before and/or after school, they may choose to gather together in a protest. As long as the protest does not create a substantial disruption, the district will likely need to allow the protest to occur. This type of protest should be treated in the same manner as other similar gatherings of students, such as the annual “See You at the Pole” events. Requests from community members to use campus facilities for protests or related events, such as a community forum, should be addressed in accordance with the school district’s facilities use policy. The determination may depend on the type of event or nature of the group making the request, but the determination must be made in a viewpoint neutral manner and consistent with district policy.
Walk-Outs / Protests During the School Day
Unlike the wearing of clothing or symbols, a student walk-out during the school day would is generally considered to be disruptive to the educational environment. Your school likely already has consequences in place for students who leave class and/or leave campus during the school day without permission. You can apply those same consequences to students who leave class or campus without permission for a protest. You must be careful that you do not provide harsher consequences for students who walk out for a protest compared to students who have walked out for other reasons. Additionally, when a large percentage of your students participate in a walk-out, it may be tempting to not apply the usual disciplinary consequences for leaving class to those students. However, you must be aware that you may be setting a precedent for how you treat student walk-outs in the future. A failure to treat a future walk-out in a similar manner could result in a claim of viewpoint discrimination under the First Amendment.
Practical Considerations
In preparing for the likelihood of student walk-outs, there are many practical issues that must be taken into account along with the legal issues. Some of these issues are addressed below:
1) Student Safety:
A primary responsibility of a school district is ensuring the safety of students during the school day. Thus, even though the walk-outs are not school-sponsored and are not organized in any way by the school, it is a good idea for the school district to be aware of planned events and to work with event organizers in an effort to promote student safety. Thus, it may make sense to meet with the student leaders, parent representatives, community organizers, city or county officials, and law enforcement officials to identify the logistics of the protest or walk-out. You may be able to encourage the organizers to conduct the event in a way that is least disruptive and protects student safety. We also recommend making a plan for staff members to provide supervision for students who participate in a walk-out or protest on campus, as well as supervision for students who do not participate. You may also wish to coordinate a plan for law enforcement officials and identify specific parameters for their role both on campus and when students leave campus.
2) Student Discipline:
Following recent student walk-outs, much attention has been paid to whether students were disciplined for participating in the walk-outs. Several colleges have recently announced that they will not hold disciplinary consequences for participating in upcoming protests against applicants. Thus, it is important to consider in advance what, if any, consequences will apply to students who participate in a walk-out. As stated above, schools may assign disciplinary consequences to students who engage in violations of the student code of conduct, even in the context of a walk-out or protest. In determining the appropriate consequence, school administrators should focus on the conduct of the student, not the message. Additionally, administrators should consider the actual practice in the school. If students are regularly permitted to leave class without consequence, students should not face consequences for leaving class for a protest.
In light of current events, and the number of students who are likely to participate, some districts are hesitant to assign disciplinary consequences for participants in the walk-out, even if permitted by school district policy. Of course, administrators have some discretion in administering the discipline policy, and are not required to assign consequences. It is important to remember, however, that you will be setting a precedent for how walk-outs will be treated in the future. Thus, district administrators may wish to consider creating guidelines for student participation in such student-organized walk-outs. For example, you may decide that students will not receive disciplinary consequences the first time that they participate in a walk-out, but will for subsequent walk-outs. You may decide that students will not receive consequences for a walk-out in which they remain on campus and return to class within a reasonable time, but would receive a consequence if they leave campus or refuse to return to class when directed after a reasonable time. Regardless, any guidelines or procedures must be viewpoint neutral, and should be communicated to students and parents in advance.
3) Community Participation:
In some of these organized protests, many community members plan to be present to show support for the students. We recommend considering in advance how those community members will be addressed. Administrators should review district policy regarding visitors to district property during the school day, as well as consider past practices. However, as a general rule, you do not need to allow community members to come on to campus during the school day to participate in protests. Again, the parameters of what you will and will not allow should be communicated to organizers in advance when possible. Coordination with law enforcement is also important in this area.
4) Role of Teachers and Other Staff:
District administrators may want to remind teachers and other staff of their roles during a student protest or walk-out that occurs during the school day. The organizers of the upcoming events regarding gun violence in schools have specifically encouraged the participation of teachers. However, while teachers and staff do have protected rights when speaking on matters of public concern, that right is limited significantly when the teacher or staff members are on duty. Thus, while they may called upon to provide supervision of students who engage in the protest or walk-out, they should not be actively supporting (or rejecting) the message of the students while on duty. As with students, the expectations for teachers and staff should be communicated with them in advance, and they should be provided clear guidance on how to handle a possible protest or walk-out, including how to address students who leave their classes.
District administrators may also wish to consider whether an educational event or discussion may be appropriate. Current events are certainly relevant to specific classes and elements of the curriculum. Therefore, teachers may wish to create a lesson on civic engagement and the history of protests in the country, or a discussion of gun control. However, such lessons should be curriculum-related, appropriate for the class, and conducted in a viewpoint neutral manner, with multiple sides of an issue presented.
5) Messaging:
With the immediate response of administrators expected by the media, it is important to consider in advance the message the district wishes to send regarding these events. Prior to the event, consistent and clear messaging about the expectations for students and staff will help promote safety. It will also help provide a perception of fairness for any disciplinary consequences that result from the event. In making statements regarding the upcoming events, or in their aftermath, school officials can certainly recognize the importance of students exercising their First Amendment rights, but should also remind the community of their obligation to maintain good order and discipline in the schools. The messaging front the school should also not favor one viewpoint over another.
Conclusion
We encourage school officials to take some time to consider these guidelines and to educate themselves about upcoming planned events in their communities. With a good understanding of the parameters of First Amendment law in the school context, and a positive, proactive and practical approach, administrators will be well prepared to address student protests and walk-outs in a manner that protects the rights of students while preserving their safety, and that minimizes disruption to the educational environment.
As always, if you have any questions regarding these issues, please do not hesitate to contact us.
Michelle Hammond Basi practices in the areas of school law, special education, school litigation, and labor and employment law. Michelle represents school districts throughout Missouri with respect to employment and termination matters, special education, Section 504, student discipline and student rights, civil rights, and church/state issues. Michelle has successfully represented school districts in student and employment matters before various federal and state courts and administrative agencies, including the EEOC, Missouri Commission on Human Rights, and the Office for Civil Rights. She is also a regular speaker at statewide and regional school law conferences.
The law firm of Tueth Keeney Cooper Mohan & Jackstadt, P.C. (the “Firm”), has one of the largest and most successful education law groups in the country. The Firm regularly serves the legal counsel needs of approximately 150 school districts throughout Missouri. The Firm also has one of the largest school law practices in Central and Southern Illinois.
Tueth Keeney is proud to be one of the state’s largest Illinois education law practices. The firm has one of the most experienced groups of attorneys in Central and Southern Illinois dedicated to serving public schools. We regularly represent nearly 150 public school districts, including many districts in Central and Southern Illinois. Our Firm is also regularly appointed by insurers of educational institutions to represent districts in complex or difficult cases involving school or civil rights laws.