By John Fester


March 6, 2018

            In response to the recent mass-shooting in Parkland, Florida, there have been national calls for students to engage in some sort of activity on March 14 to protest gun violence in schools.  The activity most frequently referenced, and the one that requires forethought from the school district, is a student walkout.  We have advised many of our clients on their specific plans and responses to student walkouts, but as March 14 approaches, we offer the following points to help our clients walk the line between allowing students a means of expression, while maintaining student safety and the ability to regulate campus speech.

 Walkouts during class time are different than black armbands.  Many people commenting on student walkouts speak of the students’ “right” to protest by walking out of class.  However, the Supreme Court has made clear that non-disruptive protest speech by students during the school day is protected by the First Amendment.  The Court has never held that primary and secondary school students have a right to leave class to assemble for protest activities.  Unlike the black armbands that became famous from the Tinker v. Des Moines case, student walkouts during class time can be regulated.

 Encourage alternative activities, alternative times, or alternative locations.  It is entirely understandable that students want to take this opportunity to let it be known that they are concerned about gun violence.  However, walking out of class is far from the only way to express that concern.  Several of our clients have been meeting (mostly at the middle- and high school levels) with student leaders to discuss what options for student activity would be most impactful, and least disruptive.  Remember that students generally have the right to peaceably assemble before and after school for expressive purposes.  If an assembly is what is desired, the school district could encourage moving the time of assembly so walking out of class is unnecessary.  A school could also run a modified class schedule on March 14 to allow a brief period of time (many student groups are looking at 17 minutes to honor the 17 Parkland victims) for assembly within the school day. 

 Many school districts have expressed concern with the outdoor aspect of any walkout.  There are many concerns associated with students milling about outside on March 14, including copycat actions, keeping students on campus, regulating parents and others who may want to enter campus before or during any walkout, etc.  To that end, some clients are encouraging students intent on walking out of class to assemble in a gymnasium or other area for safety purposes.  If an outdoor assembly seems inevitable, school districts should coordinate security with local law enforcement and have a plan for deploying administrators, teachers and other staff members to keep students from leaving a pre-determined assembly area.

 Communicate with Parents

 Once you have a plan for regulating student walkouts or other mass actions, make sure parents understand the approach and the rationale.  For example, if you intend to close the campus during a student walkout, make sure parents are aware so they do not arrive only to be turned away.  Also communicate how any walkout will be addressed.  We are not hearing too many clients interested in disciplining students for a brief walkout, but some school districts will be directing teachers to continue teaching during any walkout and will be recording an unexcused absence for students who do walkout.  Recording the unexcused absence is primarily to avoid setting a precedent that students may walk out of class without consequence.  Remember that the next time a mass walkout occurs, the school district may disagree that the issue was worthy of such action.  An alternative might be to establish a “one walkout” rule that excuses a student’s first walkout, but gives consequences for subsequent actions.  Make sure that parents and students are told ahead of time what to expect if a student walks out during class time.  Your websites, automated message systems and PTO’s are good vehicles for getting the word out.

 Avoid Viewpoint Discrimination and Remember Staff are not Students

 Some people view the planned walkouts as favoring gun regulation, as opposed to simply protesting gun violence.  As a result, some students may use the walkout to assemble in favor of gun rights or the Second Amendment.  School districts should avoid “taking sides” by showing favoritism to one student assembly over another.  Assuming the student groups are following school rules, are not violent or otherwise disruptive, school officials should be neutral in terms of supervising students who choose to walk out.

 Finally, some clients have heard teachers expressing an intent to participate in any student walkout.  Your staff should be reminded that during working hours, they are being paid to instruct, supervise and otherwise support students consistent with their professional duties.  In advance of March 14, school districts should clearly communicate expectations to staff members in terms of the performance of their duties before, during and after any walkout or other protest activity.  Staff members should not be promoting any students walking out of class.  If staff members wish to engage in expressive activity, we recommend school officials meet with the appropriate union officials to discuss options for staff to have their voices heard on this issue.

 This is intended to be a general overview of issues associated with student walkouts and is not intended to address every issue that may arise.  If you have specific questions regarding student protests, please call your attorney at Scariano, Himes and Petrarca.