Explainer: Student Walkouts and the First Amendment

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By Lyndsey Wajert

Following the mass shooting last month at Marjory Stoneman Douglas High School in Parkland, Fla., students across the country are turning their anger into action. From raising money for the victims’ families to addressing members of Congress, many students are finding ways to express themselves and call for change.

One of the more controversial ways is by participating in National Walkout Day tomorrow. Students plan to walk out of their classrooms at 10 a.m. to protest the lack of action by political leaders to prevent gun violence. The walkout will last 17 minutes — a minute for each of the lives lost in the Parkland shooting. The demonstration has raised many questions for students, parents, and administrators.

Does the First Amendment protect a student’s right to protest?

Yes and no. The First Amendment provides a great deal of protection for student speech, especially political speech. But the First Amendment does not prevent a student from being punished for missing class, or “materially and substantially” disrupting the school. That means a school can’t stop a student protest just to avoid minor hallway commotion or lunchroom gossip, but it could do so if those assembling make it difficult for others to attend class or if the assembly itself led to violence.

Ultimately, schools have discretion when deciding which disruptions would be “material and substantial.” But given that the walkouts tomorrow are expected to be peaceful, short and minimally disruptive, they are likely protected by the First Amendment.

Have students always had this right?

At least since Tinker v. Des Moines, a 1969 U.S. Supreme Court decision that addressed non-school sponsored student speech and famously declared that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker involved students who were told they could not wear black armbands in school to protest the Vietnam War. The court held that the school’s censorship of their expressive speech was unconstitutional because the bands did not present a “material and substantial interference with schoolwork or discipline.”

While the Supreme Court has since carved out some exceptions for schools to regulate lewd speech, or speech that promotes “illegal conduct” such as smoking marijuana, the court has continuously held that a school can’t punish a student for their individual expression if it doesn’t substantially disrupt the classroom.

How are schools reacting to the planned walkouts?

School districts in New England are reacting differently. In Maine, for example, at least one school district views the protest as a potential disruption to the school day, while students in Portland will not face disciplinary action for walking out. In Connecticut, where many students remember the 2012 Sandy Hook Elementary School shooting, administrators are still grappling with how to best respond, if at all. In New Hampshire, some schools have explicitly given their students a green light to participate.

What about colleges?

While many high school students are concerned about disciplinary action, the admissions offices of many colleges and universities said they will not penalize those students. Colleges around the country and throughout New England, including Harvard, Holy Cross, Wesleyan, and Yale, have made such assurances.

Will this walkout affect future student protests?

Many school administrators are considering how to approach the walkouts with this very question in mind. The National School Boards Association warned schools about being too supportive of — or outright endorsing — student protests because doing so could establish a precedent for future demonstrations. Consider a school making special accommodations for a #NeverAgain protest, but not for a pro-Second Amendment assembly. It could be argued that the school is violating the First Amendment rights of the second group of students because special treatment is given by the school based on a particular viewpoint.

There’s also the question of how to treat those who choose not to walk out with their classmates. The National Association of Secondary School Principals recently suggested that schools be wary of creating a hostile environment for those students.

Want to learn more?

• Students’ Rights: Speech, Walkouts and Other Protests
• School Walkouts in the Wake of ‘Parkland’ — Protected By the First Amendment or Not?
• School Walkouts as Civil Disobedience: How Should Districts Respond?

Lyndsey Wajert is a second-year law student at Boston University School of Law. 

Above photo provided by Flickr user Fabrice Florin and used with cropping under a CC 2.0 license.

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