Students’ Constitutional Right to Walk Out and Speak Up

PAIGE BETTGE—The tragic Parkland school shooting, which took place this February, has sparked an ongoing wave of student activism. Students’ First Amendment rights are now more than ever having widespread consequences, as student activism has caused landmark gun control reforms in Florida and is sparking conversations nationwide.

Thousands of students across the nation participated in a seventeen-minute “Walk Out” school protest on March 14th to honor the seventeen lives lost in the Parkland shooting and to protest the lack of action on gun control. Students have also organized the “March for Our Lives” on March 22nd, with marches held in every state and across the globe. In addition, students have been vocal on social media platforms and in speaking with their elected representatives.

Schools have responded to this wave of activism, and particularly to the Walk Outs, in varied ways. Some schools have endorsed the protest and allowed students to participate without consequence—some have even helped students plan the Walk Out. New York Governor Andrew Cuomo issued a statement following the Walk Out, directing New York schools to “cease any disciplinary actions” against students that participated.

Other schools have been less accommodating. Certain schools in New York reportedly blocked students from exiting the school premises during the Walk Out. Many other students across the nation have faced disciplinary backlash from their schools for this activism. Some schools have suspended students that participated in the Walk Out. One school issued a five-day suspension for a student that deviated from the planned route within the school at the Walk Out. Another school in Arkansas gave students two disciplinary options for participation in the Walk Out—one was being hit with a paddle.

Some of these school responses could violate the students’ constitutional rights under the First Amendment and due process protections. In 1969, the Supreme Court ruled that students in schools generally retain their constitutional right to protest under the First Amendment. In that case, students wore armbands as a symbol of protest against the Vietnam War. The Court stated that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Students’ constitutional rights in school are not absolute, however. The current case law, established by the Supreme Court, allows schools to limit students’ free speech expressions when the conduct or speech is lewd or obscene, or there is a material or substantial disruption of the school environment. Because walking out of school could constitute an unexcused absence or truancy, it may not be protected by the First Amendment.

The punishments that students may receive for participation in a Walk Out or similar exercise of advocacy are limited as well, though not to the degree that one might think. Schools must treat political speech according to their local policies and may not impose a harsher punishment than would be given for the same, non-political transgression. Several schools have likely unconstitutionally abridged their students’ rights under the First Amendment by issuing punishments for participation in the Walk Out that were much harsher than their standard punishments for an unexcused absence. Certain types of punishment by the school may be illegal as well, including the option of being hit for participation in the Walk Out, though this is only in certain jurisdictions. Several states and localities still permit and practice corporal punishment as a form of school discipline. The Supreme Court held in 1977 that the use of corporal punishment in school does not violate the constitutional ban on cruel and unusual punishments or any procedural due process requirements.

Additionally, while students formally retain the right to exercise their free speech outside of the school environment, schools have intervened and disciplined students for out-of-court speech in the past. One student in Nevada reportedly used an expletive when calling his elected representative to advocate for stronger gun control measures during the Walk Out, and his school subjected him to a two-day suspension in addition to an unexcused tardy for taking part in the Walk Out. The Supreme Court has indicated that speech outside the school environment is likely to be protected under the First Amendment such that schools cannot punish students, but there has not yet been a ruling explicitly on this issue.

Regardless of the limitations on students’ rights to exercise their free speech and speak out against lax gun control policies, thousands of students across the country nonetheless have advocated for change. The social impact of their actions is even more significant in light of the legal barriers that they face, and courts may soon have to rule more explicitly on the extent to which schools may stifle their students’ political speech in the name of educational order.

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