In the wake of the recent Parkland, Florida school shooting, students across the country are organizing, protesting, and advocating for stricter gun laws and increased school security at the local, state, and federal levels, with at least three national school day walkouts set to take place in the coming weeks. The largest and most publicized, “#ENOUGH,” requests that all K-12 students walk out of school for 17 minutes (symbolic of the 17 Parkland victims) on March 14th at 10:00 a.m.—the one-month anniversary of the Parkland tragedy. It is our understanding that there are more than 2000 walkouts planned across the country under the #ENOUGH banner, with 19 currently organized in South Carolina schools.
Given the potential for these walkouts, school officials are questioning whether they can and should allow students to participate during the school day, which will result in students walking out of class, most during instructional time. While some South Carolina districts have decided to prohibit their students from participating based on safety concerns related to large numbers of students gathering outside the school, others have indicated a desire to support the planned walkouts so long as they do not create a substantial disruption to the school environment or create a risk for students. In that regard, concerns have arisen as to those students who may refuse to return to class once the planned walkout time has ended, as well as those students who use the opportunity to leave the school campus.
School officials should keep four things in mind when approaching planned protests during the school day: (1) recognizing that students generally have a right to peacefully protest on school grounds during the school day; (2) providing a safe and secure space for the protest to occur; (3) determining how to handle a protest that becomes disruptive; and (4) educating staff, parents, and students on the disciplinary consequences that will occur if school policies are violated in connection with the protest.
In considering whether students have a right to participate in a walkout, the First Amendment provides that a protest, such as a walkout, is a form of protected expression. In the 1969 case of Tinker v. Des Moines Independent Community School District, the United States Supreme Court held that students could not be punished solely for wearing black armbands during the school day in protest of the Vietnam War.
The Tinker decision does not mean that school officials are barred from taking any disciplinary action against a student participating in a protest. If a school official determines that the protest has or may “materially disrupt classwork or involve substantial disorder. . .” school officials may take disciplinary against a student
without running afoul of the First Amendment. For example, if students are directed prior to a planned walkout that they will be allowed to participate within the parameters established by the school, but will be required to return to class after the walkout is over, and a student defies that directive, that student may lawfully be disciplined in accordance with the district’s student code of conduct, e.g., for the offense of “failing to follow the directive of a school official.” Likewise, if the school has established parameters for student participation in a planned walkout, such as the place where students are expected to gather and remain silent, and a student does not adhere to those parameters, the student may be disciplined.
If a school is aware that its students are planning to participate in one of the nationally promoted and scheduled walkouts, school officials should designate a space where students can safely congregate on school grounds. To alleviate concerns that a potential shooter may target that space, schools should consider not making the location of that space known ahead of time. Schools also should ensure that the selected space is adequately supervised by school staff, as well as by law enforcement, if feasible. As it is likely that not all students will participate in the walkout, schools should make certain that students who opt to remain in class are appropriately supervised. In that regard, school staff should be reminded that, unlike students, they do not have an unfettered First Amendment right to participate in a protest that occurs during instructional time.
The #ENOUGH protests are slated to take place on a specific date and at a particular time. The Action Network organizers of the #ENOUGH walkouts encourage peaceful and conflict free protest techniques. School officials should take advantage of the information on the Action Network’s website to communicate to faculty and staff what they should expect in the event a walkout occurs.
In addition to the nationally planned protests, districts should be aware that individual students or groups of students may decide to plan their own protest during a school day. In responding to the possibility of such actions, districts should consider each situation on a case-by-case basis, keeping in mind that, if the protest materially disrupts classroom instruction or creates an unsafe school environment, students may be appropriately disciplined. We do not recommend that districts issue a blanket statement that such protests will not be permitted, as such a prohibition could result in a legal challenge.
Finally, to avoid claims by students and parents/guardians that they did not understand that disciplinary sanctions could be applied to certain student conduct during a planned walkout, school officials should remind students of the applicable provisions of the student code of conduct. We also recommend that districts reach out to parents/guardians to inform them of how they are going to handle student participation in the walkouts, including the circumstances under which a student may be disciplined,
If your district has further questions about the legality of student protests and related issues, please feel free to contact us.