Students nationwide, including many across Orange County, are expected to participate in Wednesday’s National School Walkout to protest gun violence.
Although Orange County’s public schools are not sponsoring these actions, many school leaders are working with students, law enforcement agencies and community groups to help ensure that all students, whether they participate in the protests or not, will remain safe, and disruption to instruction will be minimized. These measures include keeping campuses closed to outside groups and others who are not authorized to be on school grounds during school hours.
Ron Wenkart, general counsel for the Orange County Department of Education, recently offered answers to some common questions about the rights and responsibilities of schools, students and staff. (The following information is based on existing California state and U.S. federal laws.)
Do students in public schools have a First Amendment right to freedom of speech?
Yes. Students do not shed their constitutional rights to freedom of speech or expression at the school gate. Under state law, school districts operating one or more high schools are prohibited from enforcing any rule subjecting a high school student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that is protected from governmental restriction by the First Amendment of the U.S. Constitution
Students may participate in peaceful demonstrations on campus during non-instructional periods. Students may exercise these rights as long as their speech, expression or conduct is not obscene, lewd, libelous or slanderous, does not incite students to destroy property or inflict injury upon any person, or does not cause substantial disruption to the operations of the school.
May a school district establish reasonable rules and regulations for students who wish to exercise their free speech rights on campus during the school day?
Yes. School districts may impose restrictions on the time, place and manner of the speech or activity in order to maintain a safe and orderly educational environment for all students and district employees. Students who fail to follow the directive of school administrators or teachers, or district policies concerning demonstrations, assemblies, protests or lockouts, may be subject to disciplinary action.
If the usual disciplinary action for being truant from school or missing a class is detention, for example, then students who walk out of class to protest may be subject to the same disciplinary sanctions. Stricter punishments or stricter disciplinary action based on the student’s free speech rights would be prohibited and would violate the student’s First Amendment rights.
Students who walk out of class during instructional time may be directed by school administrators and teachers that they should return to class, and be advised that they risk disciplinary action if they fail to return to class or if they leave the campus during instructional time. No physical effort should be made to prevent students from leaving the campus.
Are schools and school districts responsible for the safety of students when the engage in protests during the school day?
Yes. School districts and schools are responsible to maintain adequate safeguards to ensure the safety and welfare of students, school personnel and school property. School districts should consult with the district office and local law enforcement, if appropriate, to maintain safety and security on the school campus. School districts may need to develop an individual plan for each school in the district to maintain safety.
Under California law, school districts have a duty to supervise students while they are on school premises during the school day, and school districts may be held liable for injuries caused by the failure to exercise reasonable care.
Can school staff join students in protesting off campus?
While staff may accompany students when students leave school premises for school-related activities, including field trips, school staff generally may not leave campus to accompany students who miss class or leave class during instructional time to protest or demonstrate. If staff were to follow students off campus during instructional time, it may create potential liability for the school district
What role should school staff play if a student protest or walkout occurs?
School employees should neither encourage nor discourage students from exercising their First Amendment rights. District employees should remain neutral and supervise students to ensure their safety. District employees should enforce school rules and regulations, which are necessary for student safety and protection, and direct students not to leave the school premises during school hours. However, school employees should not attempt to physically restrain students from leaving campus.
Do school employees have a First Amendment right to participate in a walkout during working time?
No. Public school employees, in particular classroom teachers, may not leave their classroom or work station during work hours. Leaving their classroom or work station is inherently disruptive to the normal operations of the school. While public employees do not give up their First Amendment rights by virtue of their public employment, the law imposes restrictions upon those rights with respect to time, place and manner.
School employees who walk out during instructional time may be subject to disciplinary action for being absent without leave and neglect of their duty. If school employees are scheduled to work a day when a student walkout is planned, they are expected perform their job duties and responsibilities, and not leave their classrooms or work stations.
Public employees may comment on matters of public concern in their role as citizens outside of their working hours.