Legal Issues In the News

Students Right To Walkout

Bob Lawless from the University of Illinois College of Law

Bob Lawless University of Illinois College of Law

“It can hardly be argued that students . . . shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Those were the words of the United States Supreme Court nearly fifty years ago in the landmark case of Tinker v. Des Moines Independent Community School District. Student rights to exercise their First Amendment freedoms are back again in the news. When students walk out of their schools to demand sensible gun control or fair treatment for immigrants, are there limits in how school districts can respond? A cardinal principle of the First Amendment is content neutrality. When governments act against their citizens, they cannot act based on the content of the citizens’ speech. For example, a school district could not condone protests in favor of protecting Dreamers’ rights under DACA but punish students who walked out to demand immigration controls and a border wall.

In the Tinker case, junior high and high school students planned to wear black armbands to protest the Vietnam War. Getting wind of the plans, the local school principals adopted a rule that any student wearing an armband would be suspended. When the students wore the black armbands to school anyway, the school principals followed through and suspended them. The Supreme Court noted the schools had not banned other political symbols but instead had singled out a piece of clothing associated with opposition to the Vietnam War. The students had not engaged in any conduct that might disrupt the operation of the schools. The state cannot suppress ideas merely because others, even other students in a school, might find those ideas uncomfortable or unpleasant. In the Supreme Court’s words: “In our system, state-operated schools may not be enclaves of totalitarianism.”

It also is not enough that schools merely remain content neutral. Courts have stopped public school regulation of student speech that courts find to be overbroad and unnecessarily chilling of student speech. In the college context, courts have overturned regulations that prohibited all demonstrations or prohibiting any leafletting whatsoever. Merely because students have First Amendment rights does not mean those rights always trump the legitimate concerns of public schools in creating a productive educational environment. Certainly, public schools can take actions against protests that disrupt school operations and even take proactive steps against proposed demonstrations that merely threaten to disrupt. The First Amendment also obviously does not excuse protest actions that violate the criminal law.

Schools also should be able to enforce generally applicable rules even if constitutionally protected speech creates consequences that violate those rules. For example, if a school has an attendance rule, the Constitution would not compel the school to accept a student’s claim that she should not be counted as absent because she was exercising First Amendment rights in a walkout. Similarly, state compulsory school attendance laws – better known as truancy laws – could be applied to a student who walks out to attend a political protest. The principle of content neutrality still applies. The school can enforce its generally applicable rules, generally. It cannot pick and choose when to enforce the rules based on the content of students’ political expression.

A few caveats are in order. First, the Constitution only limits state actors such as public schools. Nothing we have discussed applies to private schools which remain legally free as any private actor to make decisions based on the content of speech. But, more importantly, to outline what legal powers public schools have is not to say they should necessarily exercise those powers. The Constitution often sets floors below which a government may not go. Even if the letter of the First Amendment might permit a school district to act against protesting students, better judgment might see the value of adding student voices to our public sphere – both for our sake and their sake.