The planned protests are already testing school administrators’ abilities to negotiate students’ free-speech rights.
Here are seven things you need to know about the students’ rights:
The 1969 Tinker v. Des Moines Independent Community School District case established that students don’t give up their free-speech rights at school. The case centered around student Mary Beth Tinker, a 13-year-old who wore a black armband to school with classmates in 1965 to protest the Vietnam War. The school suspended her and the others, but the U.S. Supreme Court held that the protest was allowed. Writing for the 7-2 majority, Justice Abe Fortas declared that students don’t shed their free-speech rights “at the schoolhouse gate.” Schools can’t censor student speech, he wrote, unless it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
Nevertheless, schools can discipline students who take part. The American Civil Liberties Union (ACLU) says students risk punishments like suspension for missing classes, but that schools can’t discipline students more harshly just because the protests are politically motivated. If students are planning to walk out of class on Wednesday, the ACLU suggests they look at their district’s discipline policies, especially regarding unexcused absences. “Our hope is that students feel empowered by knowing what the rules are, what permissible school actions are, and that they can make the choices that are right for them,” said Esha Bhandari, an ACLU staff attorney.
Locking out students is basically the same as suspending them, so if a school’s rules allow suspension for missing class, being locked out may be part of the punishment. If suspension isn’t prescribed for unexcused absences, schools must let students back in.
The Spring Independent School District near Houston told students that those who take part in the walkout could face in-school suspension, KHOU-TV reported. The district’s secondary school principals wrote that students should “show your support for the students in Florida in ways that won’t disrupt the school day,” such as contacting lawmakers. Meanwhile, in Milwaukee, Whitefish Bay High School allowed student organizers to distribute a note announcing that the 17-minute protest will take place on the football field. Afterward, students noted, “we will walk back to class silently, and as long as you are back in class by the start of fourth hour, there will be no disciplinary action taken,” the Milwaukee Journal Sentinel reported.
Students have the same First Amendment rights on social media as in person, as long as the posts are made off campus and outside of school hours — and don’t relate to school. But Bhandari, the ACLU attorney, said a few schools have disciplined students for otherwise allowable social media postings, and that a few courts have sided with schools, saying the posts were disruptive. “That’s something that’s in flux,” she said. In a few states, ACLU has fought these rulings.
Actually, they could be subject to punishment for participating in the same kinds of protests the older students would be allowed without punishment, since Tinker’s standard for whether speech is protected is based on whether it’s “disruptive” to a school’s ability to function. Walking out of a fourth-grade class, for instance, might be considered more disruptive than walking out of a high school civics class.
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The First Amendment doesn’t protect students from private schools’ disciplinary actions, since it limits only what government can do regarding free speech and the right to protest. “That said,” Bhandari noted, “students who attend private schools still have First Amendment rights when they’re out in the world.”
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