Today millions of students (I assume, it seems like it's basically nation wide so, let's go with that) will participate in an organized response to school violence with the #WalkOut protests. Many will be happening even as I write this. There is no shortage of conversation on this topic, both in our homes and on social media. In reading a friend's post, and the interesting replies, it was clear that while we might have opinions on what kids should do (what else is new) we might not fully grasp the First Amendment issues that underly how schools have to respond to these sorts of demonstrations and student political speech.
First let's break down what's happening. We have a huge organizing of students, mostly by students, to walk out of class and the school building to demonstrate frustration with school violence and the underwhelming response by the adults charged to protect the safety of these very students. For clarity, these are not “millennials” either. These are the next generation. And one day, soon, they will vote.
There has been a sort of counter movement to #WalkUp rather than #WalkOut, which is aimed at focusing the energy on loving each other and avoiding the division. That's great, and can be done simultaneously, but the point here is that adults are bickering over what these kids aught to do. What they should do. At least, what we think they should do.
The problem? Students are perfectly allowed to demonstrate with political speech, even during school hours, so long as it is not unduly disruptive to the educational environment. We don't actually get to decide if they can or not, and the kids are backed up by the Supreme Court on this one. It's not about if you like it or not, or if you support it or not. That doesn't matter. At all.
There are three useful cases to highlight here.
First, let's go over Board of Ed. Of Westside Community Schools v. Mergens, 496 US 226 (1992). In the Mergens case a group of students wanted to form an after-school club that was religious in nature. The school denied their club for several reasons, partly because the school feared it was a violation of the establishment clause and also because there was no faculty sponsor. The students, with help from their parents as you might guess, sued and eventually the case went to the US Supreme Court. In an 8-1 decision the Court held that the school could not stop a non-curriculum club from forming based on it's content and that the club was no different than a political club for purposes of the Equal Access Act.
Here we have a clear example of students banding together for non-curricular speech and association, much like the #WalkOut groups.
Second, we can look to Tinker v. Des Moines Independent CommunitySchool District, 393 US 503 (1969). The Tinker case is (or least should) be part of every educator's basic understanding of student's rights. In Tinker, a group of students elected to wear black arm bands to support a truce in the Vietnam War. The school district's leadership tried to institute a policy to stop students from wearing arm bands, threatening suspension. The school lost, and to use a term from the President, the school lost, biggly.
In a 7-2 decision the US Supreme Court held that the arm bands were pure speech and that students do not lose their right and protection under the First Amendment just by stepping onto school grounds. Interestingly, that same opinion held that a school could punish students if the speech, or actions, would “materially and substantially interfere” with the schools activities. There is a pretty clear and logical argument that a mass walk out would materially and substantially interfere with the schools activities. But, that can be countered by this being a fairly short instance (17 minutes?) and that the walk out is about as pure of political speech as there can be.
Third we have a personal favorite, Morse v. Fredrick, 551 US 393 (2007). This case is also well known as the “Bong Hits 4 Jesus” case. Essentially, a senior showed up to the Olympic torch rally with a giant banner that said, you guessed it, “Bong Hits 4 Jesus” on it. Citing the Tinker case, the ten day suspension for the student was upheld as being in violation of the schools policy against promoting drug use. Funnily enough, when asked if it was a political message, the student originally said it was not. So, even though later the Tinker protection was used in appealing the punishment, the student had already admitted the point of the banner wouldn't have qualified under Tinker.
Here we have inherently political speech that, at least in a vacuum, clearly qualifies under the Tinker protection for student speech, but we have the very real and obvious argument that even so it may violate Tinker by being too disruptive. But, the Morse case didn't overrule Tinker either. Just helped clarify limitations.
It's a balancing act for these school, the teachers, and the administrators. Do you punish a huge (probably a majority) of students with suspensions or, instead, do you simply organize the day to allow for the demonstrations?
Most schools seem to be opting for the organization approach, without taking a stance one way or the other (smartly) on the message, but rather keeping something that will happen any way under control. It's hard. It's easy to just get mad at a bunch of kids and want to tell them to sit down and learn, but for all of the time spent trying to get kids to just engage in the lesson it seems a great chance to do just that. Asking them to do otherwise is counterintuitive, and expects them to suspend their ability to think and reason and just sit and do as they are told. I'm married to an educator and I know the task is monumental. There will always be unhappy parents in a situation like this, no matter what the school does, but in this instance it's not the parent's political views or the parent's speech at issue, but rather the children's.
I don't have a student in school yet. My oldest is three. He's already figured out that “just do as your told” is really just adult code for “I don't have a reason other than your a kid and I'm not” and that just doesn't fly very well. I imagine by the time he's 13 or so telling him to just turn off his brain and learn, as many seem to want to do, isn't going to work too well either. Which is good. I hope my children are able to think and reason for themselves and that their learning environment is able to foster more than just rote memorization and ability to follow directions. School structure is important but our kids are also citizens of this country and their liberty doesn't stop at the school's driveway.