Thousands of students throughout the country participated in school walkouts on March 14, 2018 to advocate for stricter gun control laws and in memory of students killed at Marjory Stoneman Douglas High School. Since then, additional efforts to organize student-led protests have continued, including efforts to organize an almost-day-long walkout on April 20, 2018. In anticipation of this and other possible student-led protests, school districts are continuing to prepare for how their schools will respond to such efforts. We identify below some questions that we have received from school administrators regarding such protests along with some of the issues that administrators should keep in mind when considering such questions. As each district’s response may depend on the specific circumstances unique to that district or school, administrators should continue to contact us for guidance particular to your districts.
What issues should a school district keep in mind to address student participation in future walkouts?
A district should consider several factors when determining its response to future student participation in protests and walkouts. Such factors include, but are not limited to:
- How the district responded to past student protests or walkouts;
- Whether the district will impose discipline for conduct in violation of its discipline policy;
- Whether the district will provide supervision during the walkout and, if so, how;
- Whether the district will provide protesting students with space or support on school grounds;
- What school or district policies cover student protests; and
- Whether the school’s past responses differ from how it is considering responding to future student protests.
As recommended by the National School Board Association’s Navigating Student Walkouts Mass Protests guide [link], it may also be beneficial for school administration to meet with community and school leaders when considering its response to a particular planned event, such as student groups and leaders, union representatives, parents, law enforcement, community groups or local officials.
Are there particular issues a school district should keep in mind for those students who want to participate in the April 20 walkout?
For school districts discussing what action, if any, to take in response to the April 20 walkout, the factors outlined above should be part of that discussion. For instance, although some districts may not have disciplined students for participating in the March 14 walkout, a walkout where students miss the majority of the school day, such as the one planned for April 20, is likely more disruptive and may prompt a district to consider whether discipline for such conduct is appropriate. As such, and as explained further below, school districts should review their policies that relate to truancy or unauthorized departures from school or the classroom in order to determine when discipline is appropriate and to what extent.
Can a school district discipline students for participating in future walkouts?
Where a district’s student discipline policy prohibits certain behavior, such as truancy or leaving class without permission, the district is entitled to impose the corresponding discipline when a student violates that provision or policy. The code of conduct should be “viewpoint neutral,” and schools should be careful not to impose a harsher penalty on a student than what the district policy calls for simply because the student engaged in an act of protest.
Administrators should also take care to ensure that the district imposes discipline for misconduct in a consistent manner, so that the district does not appear to be discriminating based on viewpoint. For example, if students who violated a school rule against “leaving class without permission” were punished when they left for a sit-in protesting the new dress code, but other students who violated the rule were not punished when they left class to stage a counter-protest in support of the new dress code, the school may appear to be participating in unconstitutional viewpoint discrimination.
Where student political speech does not violate a district’s student discipline policy, the district’s response should be determined on a case-by-case basis using the first amendment substantial disruption analysis. Please contact us if you have further questions about this analysis.
If we did not discipline students for walking out on March 14, can we discipline them for walking out on April 20? What about other future walkouts?
Where a district did not discipline students for walking out on March 14, but seeks to discipline students for future walkouts, it must have a legitimate, non-viewpoint based reason for applying discipline in one scenario and not the other. For example, if an anticipated walkout is expected to be more disruptive to the school environment due to it lasting longer than the March 14 walkout or if it involves students violating a different set of rules (e.g., truancy vs. leaving class without permission), that may provide a legitimate non-viewpoint based reason for applying discipline to students who engage in such a walkout. Districts may also consider whether other non-viewpoint based reasons for applying discipline exist, such as whether the purpose of imposing discipline in order to modify behavior is more likely to be achieved if discipline is imposed for participation in future walkouts, or whether any lessons were learned from the disruptiveness of previous walkouts that may prompt the district to now adopt a new policy addressing such conduct.
As discussed above, in order to impose discipline for walking out of the school building without permission, districts should have a policy or procedure prohibiting conduct such as truancy, leaving class without permission, and leaving the school building without permission. This policy should clearly outline the penalty for such conduct or absence.
If your district already has an applicable policy or code of conduct provision, consider whether you need to communicate with students and parents about how it will be applied going forward. If you do not have a clear, applicable policy, boards should consider adopting one. Either way, give careful consideration to what kind of notice you should send to parents and students about the policy and how it will be applied.
If we provided students with space on school grounds to gather during the March 14 walkout, do we have to provide them space again for future walkouts?
By providing students with a space to protest, your school may have created what is known as a “limited public forum.”
Schools can close their limited public forum at any time with a viewpoint neutral regulation, but cannot open and close the forum based on the viewpoint. For example, it would be unconstitutional for a district to allow all pro-life students the space to hold a protest, but not give any pro-choice students such space. In contrast, a school that gave the students participating in the March 14 walkout a space to gather could decide that it will no longer give any student protest space. The decision to not provide students space to gather in protest must be objectively viewpoint neutral.
Schools are also able to impose viewpoint-neutral rules on the use of their limited public forum. For example, a district could likely impose a rule that space will only be granted for student protests that (a) have been requested with “x” weeks’ notice and (b) will only last “x” periods or less. Again, though, if the school offers space to one group, it cannot deny space to another simply because it disfavors its viewpoint.
Districts should also consider what kind of notice may be required to be provided to students and parents regarding the space that will be provided, as well as the level of supervision that will be provided. For example, if no supervision will be provided for students who walk out of the school building, parents should be informed.
If we held an assembly or other programming during the March 14 walkout, do we have to do something similar for future walkouts?
As detailed above, your school may have created a limited public forum by holding an assembly or other programming during the March 14 walkout (and thus, the above analysis likely applies). One question to consider would be whether the school, in holding such an assembly or program, opened a forum for the purpose of student expression, or enabled students to participate in school-sponsored expression, or whether it was for the purpose of furthering a legitimate pedagogical concern. Schools can regulate school-sponsored speech where there is a legitimate pedagogical concern for doing so.
However, a school should take care to not appear to sponsor one political viewpoint and not the other. Instead, it should have legitimate pedagogical reasons for holding assemblies or offering programming on certain topics and not others. Should a school decide to hold an assembly or school sponsored event during a known protest, the school should be sure to focus on educational or school related topics (for example, civics, the history of protests in America, or school safety generally) and not on the protest itself. Schools should also be cautious when allowing students to speak at such assemblies as that speech could become political, at which point the school risks providing the students with a forum for protest.
Districts also should consider what kind of notice should be provided to students and parents regarding the district’s approach.
Is it appropriate to address situations differently where only a small number of students are engaging in a protest or walkout?
The same First Amendment issues apply regardless of the number of students participating in a protest or walkout. A popular cause may garner large numbers of students in support, whereas only a few students may gather in support of an unpopular cause. Districts must be careful to not engage in viewpoint discrimination by making exceptions to school rules for popular causes and enforcing school rules against students protesting for unpopular reasons.
The number of students may affect safety, supervision, and space issues, in which case the number of students would be appropriate to consider so long as any determinations made are done so in a viewpoint-neutral manner.
Can employees who wish to do so participate in a walkout with the students?
Under Illinois’ Local Governmental Employees Political Rights Act, no employee of a school district may engage in political activities while at work or on duty. Moreover, while public employees have First Amendment rights, their rights are curtailed when they are speaking as a public employee. An employee of a school district may have the right to speak as a private citizen on a matter of public concern, but likely does not have a First Amendment right to participate in a political walkout while on duty.