In reading the news, it is probable that students in New York State will seek to protest surrounding issues of school safety and gun access. Given this, it is a good time to remember what First Amendment rights students have and what actions school districts can and cannot take when faced with students’ protests.
In pertinent part, the First Amendment protects students from unreasonable restriction of speech by the government, which includes public schools. The Courts have recognized that students do not shed their constitutional rights at the school house door, but also, that students do not have full protections that citizens have from governmental restrictions on speech on street corners or other, public, settings. That is because the Courts have recognized that given the age of students and the fact that students are in a quasi-public setting at school, there are some limits based upon content and manner of speech which can be imposed by school officials.
Generally, however, when it comes to political speech, such as protests over gun control laws, the Courts will protect protests that are peaceful and do not impede the ability for non-protesting students and/or staff members from ingress and egress to the school and classrooms. That means, if students wish to have a protest outside of a school building before the start of the day, during a free period or after school, so long as they are not blocking the entrance to the building, such protest would likely be lawful.
However, the national protests contemplate a walk out, where students are to leave class and exit the building. In that instance, the Constitution does not protect students from being disciplined for not attending class. Class attendance is mandatory under the compulsory education laws and, most likely, cutting class is not permitted under the district’s code of conduct. Therefore, school officials could potentially take disciplinary steps, consistent with the language of the school’s code of conduct, against students taking part in such a walk out for cutting a class. However, a school cannot punish a student more harshly for missing class for a political protest than if the student had missed class for another, unexcused, reason.
As always, school officials have discretion as to when to discipline a student. Given the breadth and scope of this issue, we understand that District’s may choose not to impose discipline. Should this be a District’s response, the District should be aware that such decision could potentially impact what can be done if faced with future protests of the same type.
