This is an opinion piece that originally ran on Seacoast Online on Thursday, March 15, 2018 and was co-written by Gilles Bissonnette, ACLU-NH Legal Director and Dan Pontoh ACLU-NH Community Organizer.
Over the past couple of weeks, students have taken charge in calling for gun reform and school safety. Led by students impacted by the Parkland school shooting, there have been organized walk outs, protests, and rallies. Putting the politics of gun reform aside, one thing everyone should unify behind is protecting the First Amendment rights of students who want to speak out.
Even when they are on school property, including during school hours, students still have First Amendment rights. The U.S. Supreme Court has consistently held that a prohibition against expression of opinion by students, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First Amendment. This was first recognized in 1969 when the Supreme Court, upholding the right of a student to wear an armband to school in protest of the Vietnam War, stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Whether a walk out amounts to a “material” and “substantial” disruption of school activities or interferes with other students’ rights is arguable. School officials who encourage community engagement and integration of extra-curricular activities, however, should be careful not to define behavior by students who “peaceably assemble” as behavior that, by definition, disrupts school activities.
Instead, schools should be encouraged to view such behavior as investment and engagement in one’s community, which is often encouraged in school codes. In the absence of a direct threat to a school’s functions or to other students, school officials should not threaten discipline to discourage participation in peaceful civic actions.
While the First Amendment does not give students a right to skip school, school officials should ensure that all students who choose to participate in a walk out are treated the same, regardless of the school they attend or who they are. For instance, schools must ensure that any discipline imposed on any student participating in a walk out is not different from that imposed on other students who intentionally skip class in violation of school rules for other reasons.
Put simply, a student cannot be punished specifically for the content of their speech, or for the reason for their walk out or absence. Any disciplinary action must be in response to the school absence rather than to the content of the student’s speech or reason behind a walk out.
Schools similarly may not threaten retaliation against students as a means of discouraging First Amendment protected speech. For instance, threatening expulsion is impermissible when expulsion would not be applied were the same student to skip class for a non-political reason.
Outside of school property and school hours, students have essentially the same First Amendment rights to protest and speak out as anyone else. This includes on social media. Schools generally cannot discipline students for non-school related content posted online when it’s done off campus and outside of school hours, regardless of whether or not the content is tasteful or in line with school views. The ACLU has repeatedly challenged efforts by schools to discipline students for off-campus online content. As a society, we cannot pick and choose to whom we apply First Amendment rights, or when.
Even if schools are within their rights to discipline students, it does not mean they should. Rather than viewing student activism as a problem or threat, schools should support students flexing their civic muscles. Peaceful civic action is laudable. It teaches leadership, courage, and responsibility. It’s also the backbone of our democracy. The strength of our democracy and our country is in our people and their ability to speak truth to power. This is all the more inspiring when led by young people.