Student Walkouts and the Law
In November 2016, students in Washington, D.C., walked out of their classrooms in protest when Donald Trump won the presidential election. In September 2017, students in Denver walked out to protest issues related to the Deferred Action for Childhood Arrivals (DACA) immigration policy. In March 2018, thousands of students left school to rally against gun violence. After the walkouts, students in some districts were disciplined. Many wondered whether disciplinary action was warranted or legally permissible.
Can Schools Support Student Walkouts?
On March 14, 2018, thousands of students throughout the country walked out of schools in response to the shooting in Parkland, FL, and to advocate for stricter gun safety laws. In many districts, administrators let it be known that they would not punish students who joined in this national walkout.
In some districts, schools not only tolerated the Parkland protests, but also allowed teachers who supported the protesters to join them if they wished. In a few schools, administrators, teachers, and students walked out and advocated for gun restrictions and school safety together.
It is clear that schools have broad discretion—to punish, tolerate, or support walkouts. But many schools that declined to punish students who protested in response to the Parkland shooting and advocated for gun safety might not be as tolerant or supportive of disruptive walkouts in support of other causes.
Also keep in mind that school officials can regulate who is on campus. Thus, community groups are not entitled to participate in walkouts with students at schools during the day.
Can Schools Discipline Students Who Participate in Walkouts?
School officials can discipline students for missing class due to a walkout if they choose to do so. Importantly, the form of punishment must be related to missing class and cannot be harsher due to the conduct’s political nature. The punishment will, of course, vary by school district, as policies often differ.
Do Students Have First Amendment Rights to Walk Out of Class to Protest?
According to the U.S. Supreme Court, students do not shed their constitutional rights at the schoolhouse gate. Tinker v. Des Moines Independent Community School District (1969) examined whether school officials violated the First Amendment rights of students after they were suspended for wearing black armbands to school to protest the Vietnam War. The court ruled that there was no evidence that the armbands created a material and substantial disruption in the school. This decision suggests that students can be disciplined for their political speech when this speech causes a material and substantial disruption at school. Arguably, a critical mass of students walking out of the school during instructional time would cause a material and substantial disruption. Thus, school officials would not be violating students’ First Amendment rights if such speech is curtailed.
It should be noted that the First Amendment applies only to public schools. Therefore, neither private school teachers nor students have constitutional free-speech protections.
Can Teachers Be Disciplined for Participating in a Walkout?
Teachers are permitted to speak as private citizens on matters of public concerns. To illustrate, if a teacher attended a presidential rally or a gay rights march, or a town hall meeting on gun control on a weekend, this speech would be protected. Under some circumstances, this private speech that relates to a matter of public concern can be curtailed if it is demonstrated that the school’s interests in protecting the public agency outweigh the teacher’s free speech rights. This would be highly unlikely in the above examples.
However, teachers do not have First Amendment rights when their speech is directly related to their official job duties. For example, the 9th Circuit Court of Appeals ruled that a special education teacher’s concerns about the improper treatment of students in the school’s program were not protected under the First Amendment because they were made pursuant to her duties as an employee. Likewise, a teacher may not give a political opinion in class. The 7th Circuit Court of Appeals held that a teacher had no constitutional right to say that she honks “to show support for the demonstrators” after a student asked her during a current event lesson about whether she supported Iraq War protesters who assembled downtown each week in her community. The court reasoned that “the First Amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system.” (It should also be noted that this teacher had been put on notice to not give her political opinion in class.) Thus, if a teacher led a discussion about the evils of the Second Amendment right before the walkout, her speech would not be protected.
With regard to walkouts, some principals will want their teachers to work in a supervisory role for safety purposes. As such, school staff may have been involved in the walkout whether they wished to voice their concerns about gun control or not. Thus, it would be best for teachers to remain neutral on the politics related to the walkout.
Does the Issue of Viewpoint Discrimination Come Into Play?
This question of viewpoint discrimination is arguably a challenge for school administrators. School officials should be sure to respect the rights of all students and should generally not favor one viewpoint over another. For example, if school officials allow students to participate in a walkout to protest gun violence, they should not punish students the following month who engage in a walkout to support the Second Amendment. Of course, some might argue that schools could support walkouts that only relate directly to the school (e.g., school safety or school finance issues). However, even this approach could backfire. Imagine the school supports the gun violence protest (i.e., linked to school safety) but not the Second Amendment rally (i.e., not directly linked to school safety). The students supporting the latter could argue that arming teachers promotes school safety.
In order to avoid this type of line drawing, some school districts are wisely treating the walkouts like any other school day. Specifically, if a parent calls in to release their child from class, the student can leave. If a parent does not call, the student is truant. With this approach, the district could avoid being engaged in viewpoint discrimination and deciding which particular walkout the school supports.
In an interview in early 2018, Mary Beth Tinker (plaintiff in the 1969 case Tinker v. Des Moines Independent Community School District) stated, “It’s established law that you can’t stop students from expressing themselves peacefully in schools—and besides, why would we want to?” She also observed, “We want our children to be civically engaged. We want to encourage them to practice democracy.”
While we want students to be actively involved in our democracy, there are limitations that are put in place in public schools to balance this type of engagement. Courts try to strike a similar balance with teacher speech as well.
Suzanne E. Eckes, PhD, JD, is a professor at Indiana University, co-author of the forthcoming book Legal Rights of School Leaders, Teachers, and Students, and president of the Education Law Association. David Schimmel, JD, is emeritus professor at the University of Massachusetts at Amherst, former lecturer at Harvard University, and co-author of Principals Avoiding Lawsuits.
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