By David Nash, Esq., LEGAL ONE Director, FEA
March 6, 2018
The response of students across the nation to the Parkland, Florida shootings has been truly inspiring. Sparked by the thoughtful and passionate students from Marjory Stoneman Douglas High School, New Jersey students are voicing their concerns for student safety in a variety of ways, from participating in community protests to using social media to mobilize grassroots efforts to promote major policy changes. While school leaders across the State should applaud such civic engagement, it is critical that all stakeholders work together to ensure that students remain safe and secure and do not infringe on the rights of others while exercising their First Amendment rights.
A national school walkout is currently being planned for March 14, 2018 at 10 am, lasting for 17 minutes in remembrance of the 17 victims of the Parkland tragedy. Planned student walkouts create significant challenges that could result in compromising student safety and disrupting the educational environment. On February 27th, the New Jersey Department of Education issued guidance to all school districts regarding key considerations in responding to possible student demonstrations. School leaders are urged to carefully review this NJDOE document, which includes guidance on identifying and securing an appropriate location for a student gathering, monitoring social media to help determine actual plans in your school and reviewing protocols laid out in the Memorandum of Agreement between education and law enforcement officials. In addition, the National Association of Secondary School Principals has issued a document of resources on managing school walkouts and protests.
In response to the Parkland tragedy, LEGAL ONE is offering a series of free webinars on March 12, March 21, and March 28, addressing various aspects of school safety and security. Each webinar will run from 3:30 to 4:30 pm, and will also be archived for those unable to participate live.
Building on the recent NJDOE guidance, this article is intended to review key legal principles that should be considered as school leaders work to empower students to express their voices in responsible ways.
Student First Amendment Rights
Students do not shed their Constitutional rights at the school house gate, as the U.S. Supreme Court recognized in the landmark case of Tinker v. Des Moines. In that case, students sought to protest our involvement in the Vietnam War by wearing black arm bands as a form of silent protest. The school district learned about the planned silent protest and attempted to preempt it by announcing a policy banning all forms of student protest in school. In deciding that the school district violated the First Amendment rights of students, the Court indicated that students had the right to engage in speech in school as long as it did not actually result, and was not likely to result, in substantial disruption to the school environment or interference with the rights of other students. Subsequent cases have made clear that students have no right to engage in threatening, lewd, or profane speech, or speech that promotes illegal drug use. Courts have also recognized that speech that occurs outside of school may be regulated when it is necessary to protect the safety of students and preserve student discipline.
Thus, students do not have the First Amendment right to engage in walkouts that result in disruption to the school environment or otherwise endanger student safety, even if they are doing so in support of a cause they care about a great deal. However, students do have the right to express their views on school safety and gun violence if done within the parameters outlined above, and as detailed below, school leaders should work with student leaders to find constructive channels to allow students to voice their views and concerns.
Staff First Amendment Rights
Public school employees have First Amendment rights as well. The parameters of staff members’ First Amendment rights were first articulated by the U.S. Supreme Court in Pickering v. Board of Education, an Illinois case. In that case, the Court identified three key questions to consider in determining if a staff member’s speech is protected under the First Amendment:
Did the statement concern a matter of general public concern?
Was the employee speaking as a private citizen or during the course of his duties?
Was the statement likely to disrupt a close working relationship?
To the extent the employee is addressing a matter of general public concern, speaking as a private citizen and not undermining close working relationships with other staff, parents and students, the speech is generally protected under the First Amendment. Subsequent cases have made clear that staff members do not have First Amendment protections when they publicly air personal grievances with their colleagues or superiors while in school, or express personal political or religious views in the classroom or while on duty or otherwise engage in actions that undermine their ability to continue to do their job, such as engaging in cyber speech outside of school that is critical of individual students.
Thus, staff members do not have a First Amendment right to express their concerns over school security and safety to students while working during the school day as teachers, counselors or administrators. However, staff members do have the right to express their views outside of school in a variety of forms, as long as they adhere to the guiding principles laid out in Pickering.
Putting Key Principles into Action
With these key legal principles in mind, below are recommended strategies for addressing planned student demonstrations and, more globally, addressing student and staff concerns over safety:
- School administrators should work closely with student leaders and parents to explore age appropriate and safe alternatives to school walkouts for students to express their views on critical public policy issues such as school security and gun violence. This could include planned student assemblies, classroom-based discussions of current events, reviewing key aspects of civic involvement such as writing to elected leaders, supporting students involved in various student clubs that wish to become engaged, and allowing students to express their views in the school newspaper.
- Schools should assume that student walkouts may occur on March 14th and put in place specific plans to limit the walkouts to controlled areas that are not exposed to vehicular traffic. Such planning should include protocols for ensuring that students are aware of where to go, proper staff supervision and close collaboration with law enforcement.
- School leaders should work closely with students and parents so they fully understand the importance of ensuring student safety during any planned demonstrations. Engaging students and getting their buy-in for responsible forms of demonstration will reduce the risk of student harm.
- Schools should consider only imposing disciplinary consequences for those students who do not follow the established protocols for a student walkout. This could include discipline for students who leave the assigned walkout area, use inappropriate language, demean or threaten other students or staff, or fail to return to school in a timely manner (as noted, the national walkout is planned to last only 17 minutes).
- School staff should be reminded to not convey their personal political views to students while on duty as school employees. Instead, school staff should focus on ensuring that students are respectful of each other and are allowed to express their voices in an appropriate manner.
- School leaders should engage in meaningful dialogue with school employees, parents and staff around issues of school security. It is critical that school employees and other stakeholders feel that legitimate channels exist for them to express their views and concerns regarding school safety, and that those concerns are being taken into serious consideration.
- School leaders should be mindful to ensure that all students who choose to express their views are protected. It should be recognized that issues of gun violence often generate very passionate views, and the potential exists for student conflict or even bullying for students who may hold minority views. Leading up to March 14th, students should be reminded of the importance of respecting the views of other students with whom they may disagree.
- School leaders should not look at any single planned demonstration as an isolated event, but rather as part of a broader effort to promote responsible civic engagement. Schools should look critically at the overall district curriculum to ensure that this teachable moment becomes part of a much larger effort to help all students understand what it means to be a citizen in a democracy.
- Consequences that are imposed for students or staff members for inappropriate acts related to the school safety debate should be carefully thought through and proportionate. Overreactions to single incidents may inadvertently inflame situations and undermine school climate. In many cases, consequences for minor, first-time infractions for staff members may be a disciplinary meeting and/or a memo in a file. Similarly, minor student infractions could result in required counseling and reflection exercises for students. On the other hand, serious consequences may be necessary where student or staff actions endanger students or others or significantly undermine school discipline.
Taken together, these strategies can help convey to all stakeholders that our schools are committed to ensuring a safe environment for all students, staff and parents, and are also committed to empowering our students to learn the fundamental principles of citizenship and the importance of using their voice to promote meaningful change in our society.
Participants are also encouraged to register for the three free webinars being offered through LEGAL ONE related to school safety and security, each from 3:30 to 4:30 pm, including:
March 12 – Responding to School Security Crises: Protocols, Legal Requirements and Best Practices
March 21 – Empowering Student Voices: Promoting Responsible Civic Engagement in Response to Parkland