WASHINGTON — Students who participate in Wednesday’s national school walkout to protest gun violence and memorialize the 17 people killed in last month’s shooting at Marjory Stoneman Douglas High School will be exercising their constitutional rights.
As students across the country, motivated by the Stoneman Douglas students-turned-activists, plan actions to advocate for gun control, the question of rights and punishment can become complicated.
A 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, affirmed that students and teachers have a right to protest, unless schools can prove an act “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”
“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the justices wrote in favor of junior high and high school students suspended for wearing armbands protesting the Vietnam War.
But schools that typically impose penalties for missing class can still punish those who participate in Wednesday’s walkout. Georgetown University law professor Heidi Li Feldman told HuffPost that students should not expect “a guarantee that your school won’t sanction you,” but they cannot explicitly say that they are punishing students due to the gun violence walkout.
“There’s a lot of legal doctrine which protects speech, political speech in particular, against penalty,” Feldman said. “What they cannot do is penalize students for expressing a particular viewpoint.”
However, schools can place restrictions on protest if they deem it “too much of a disruption — it’s not an appropriate time, manner, or place,” she said.
Schools with a history of allowing administrators “to exercise a lot of discretion, case by case” in enforcing policy could find themselves in legal trouble, she said. For example, a school that usually allows a parental note to excuse an absence, but won’t on the day of the protest, may have a problem.
If I were a lawyer advising a school district, I would say … it’s not worth risking a claim that you’re infringing the First Amendment.”
Heidi Li Feldman, Georgetown Law professor
Schools are in a stronger legal position if they enforce policies consistently, or “can give a good explanation of when they make exceptions,” Feldman said.
Students also plan a national walkout on April 20, the anniversary of the 1999 Columbine High School massacre.
Anticipating questions about students’ rights, the American Civil Liberties Union has put together training materials and other resources, pointing out that “the law in most places requires students to go to school,” so “schools can discipline you for missing class.”
The ACLU advised students to learn their school’s policies for missing class, and to monitor whether the rules “are being applied differently when it comes to your walkout.”
The high-profile walkout and attention from groups like the ACLU may make it unwise for schools to impose punishments, Feldman suggested.
“If I were a lawyer advising a school district, I would say, unless you’ve been extremely consistent in enforcing whatever sanction you want to enforce against students who are absent or who leave school because of their participating in a gun protest, it’s not worth risking a claim that you’re infringing the First Amendment,” she said.