Ferrara Fiorenza P.C.
 

Student Protests and Walk Outs: Is Your District Prepared

3/8/2018

Student Protests and Walk-Outs: Is Your District Prepared?

In the aftermath of the Parkland, Florida shooting, citizens generally—and students in particular—have shown a determination to make their views known on the issue of gun violence in schools.  Over the next several weeks there are at least three dates on which there are efforts underway to organize nationwide protests and walk-outs: March 14, March 24 and April 20.  Please note that the first and last of these dates are on school days and the plan for April 20 is for students to leave school at 10:00am for the remainder of the school day.  This “Client and Friends Alert” is intended to provide you with some issues to consider before being confronted with these high-profile and potentially volatile situations.

As a threshold matter, you need to understand that the precedent you set with your reaction to this protest will likely have to be followed with the next.  While you may agree with this protest, that may not be the case with future protests.   Also bear in mind that each community is slightly different and the best approaches to these situations may differ depending on the culture and history of that community. Finally, you must remember that your actions in this situation have constitutional implications.  In other words, efforts taken to avoid disruption of the educational process or to discipline those involved in a protest will need to be carefully balanced against the participants’ First Amendment right to free speech.  This is necessary to avoid what can be costly and difficult-to-defend lawsuits.

What should schools be doing in advance of these protests?

It may sound trite, but be prepared. A consensus as to a school district’s response, between the Board of Education, the Superintendent of Schools, and your building principals is critical.  This will permit you to communicate with parents in advance and to have comments ready for the media in the event that a walk-out does occur.

Given that disciplinaryaction(in accordance with your Code of Conduct)may become necessary, it would be prudent to review your district’s existing policies and procedures, including in particular how your district responds to unexcused absences.  The Board, the administration and the faculty should have a common understanding of: (1) what the existing policies provide; and (2) how to apply it in a content-neutral manner (i.e., to address the issue of absence without reference to the content of speech that may underlie the absence).  By enforcing your policy in that neutral manner, you are in the best position to defend against claims of free speech violations.  Also, by avoiding a response that is tied to the content of the students’ speech, the school district remains in the best position to avoid creating a precedent that could be used by proponents of some future cause.

You should also be prepared to provide adequate student safety and district security.  Advance planning with your own security staff and with local law enforcement can help the district be prepared to deal with a variety of issues, including access by third parties to district property for protests or demonstrations. With strangers present, the school’s ability to control the situation and its ability to safeguard students can become compromised. In addition, consider that a protest that occurs outside is, by definition, in an open and less-controlled environment.  Any plans should take these matters into consideration.

At the same time, once you have addressed keeping your premises secure, your administrators and teaching staff can make plans designed to provide further oversight and security for your students.  For example, this may involve developing one or more programs that would allow students to express their concerns on site.  Such a plan could discourage absenteeism while furthering the civics education of the students.  You might consider working with student organizers to conduct a planned observance or assembly in memory of the victims of Parkland and/or other school shootings. You might also allow students the option to participate (within the building or perhaps on an outdoor track) in a silent tribute or remembrance of the victims. In the event of bad weather, you may want to be prepared to have an assembly within the school for students to debate the issues and/or to participate in an interactive presentation with administrators and security personnel.  Such a program would allow students to better understand what is in place for their safety in the district as well as educate them about the role they can play in helping to avoid school violence in the future. 

In any event, the district should be prepared for the need to supervise students who leave the building and for sharing information with – and soliciting the cooperation of – students and parents.

What if a student participates in a “walk out” that occurs during the school day?

Consider following your existing policy regarding unexcused absences.  Your goal is to avoid disruption of the educational process, but if you are confronted with an absence, you must address it on a content-neutral basis.  It should not matter that the student is absent because he/she is a proponent of any particular viewpoint on guns or school violence.  In other words, the content-neutral issue you are addressing by treating it as an unexcused absence is the disruption of the educational process by the student who chooses to miss class.  It is not the student’s position on guns in general or gun violence in schools.

What if a student protests in school?

Look at the nature of the “protest.”  Has the student engaged in conduct which materially and substantially disrupts the classroom or school environment?   Such a “material and substantial disruption” does not exist when a teacher, a principal, a Board member is offended by the student’s viewpoint, but rather when there is reasonable likelihood of disruption of the educational process.  If so, you may want to apply your Code of Conduct to the disruptive act, not to the viewpoint being expressed by the act.  With substantial efforts underway nationally to encourage walk-outs, the actions of students to encourage others to leave school during the school day—again emphasizing the act, not the content—may be a reasonable basis to find a credible risk of disruption. 

On the other hand, has the student exercised political speech without disruption or clear risk of disruption?    The courts have regularly sustained a student’s right to express political speech.  For example, in the landmark Tinker case from the 1960s, students were permitted to wear black arm bands in school to protest military involvement in Viet Nam.  This was permissible because wearing arm bands did not substantially disrupt the educational process.

The bottom line is that disciplinary action in the absence of actual and material disruption, or foreseeable probability of such disruption, will expose the district to a civil claim of violation of free speech rights.

If you have questions regarding the quality of your evidence of actual or probable disruption or any other issues related to student protests or walk-outs, feel free to contact us to discuss the situation and to develop the best strategies for addressing the matter in your district. 



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