Legal Updates


PLANNING FOR SCHOOL DEMONSTRATIONS/WALKOUTS

February 27, 2018

Introduction

In the aftermath of the shooting at Marjory Stoneman Douglas High School in Parkland, Florida, several student demonstrations have been planned nationwide.  Students and, in some instances, staff members, may be participating in coordinated demonstrations during the school day to protest gun violence and/or to promote gun control legislation.

To date, at least three nationwide demonstrations have been planned (and school district officials should keep in mind the possibility that the details relating to these demonstrations may change, one or more of these demonstrations could fail to materialize altogether, or additional demonstrations could materialize):

  1. “National School Walkout” on Wednesday, March 14, 2018: Organized by the Women’s March’s Youth EMPOWER group, this walkout is scheduled to take place at 10:00 AM and is scheduled to last for 17 minutes (symbolizing the 17 individuals who were killed in the Parkland shooting). The stated purpose of the walkout is to “protest Congress’ inaction to do more than tweet thoughts and prayers in response to the gun violence plaguing our schools and neighborhoods.”
  1. “March For Our Lives” on Saturday, March 24, 2018: Students are expected to lead a march in Washington, D.C. This movement is expected to involve local marches at schools and local state capitol buildings throughout the country.
  1. “National High School Walkout” on Friday, April 20, 2018: Students are expected to honor the 19th anniversary of the shooting at Columbine High School with a 10:00 AM walkout or a full school skip day.

School district officials have been working to determine how best to balance the competing considerations of these pending demonstrations/walkouts, striving to maintain an environment that facilitates student learning and discussion while maintaining orderly school operations, protecting students and staff, and attempting to ensure that school district policies and state law are followed. 

This Legal Update will provide an overview of several considerations for school district officials to take into account when planning for these and other student demonstrations/walkouts.

Compulsory Student Attendance

Wisconsin Statute Section 118.15 requires regular school attendance by students.  Indeed, “truancy” is defined by statute as “any absence of part or all of one or more days from school during which the school attendance officer, principal or teacher has not been notified of the legal cause of such absence by the parent or guardian of the absent pupil . . . .”  As the statute explains, not every absence is an unexcused absence, and there are limitations to a school district’s ability to require a student’s attendance.  Most notably, Wis. Stat. § 118.15(3)(c) provides a parent/guardian with the broad ability to excuse his or her child from school:

Any child [may be] excused in writing by his or her parent or guardian before the absence.  The school board shall require a child excused under this paragraph to complete any course work missed during the absence.  A child may not be excused for more than 10 days in a school year under this paragraph.

Simply put, students are required to attend school as a general matter, but any student who is excused in a manner provided for by state law, including when a student is excused by a parent under Wis. Stat. § 118.15(3)(c), may not be disciplined for an absence, even if the absence is for the purpose of attending one or more of the demonstrations discussed herein.

Being excused does not, of course, permit a student to create disruptions or disturbances at school.  Even if a student has been excused from school by his or her parent/guardian, the student may not disrupt school operations by not leaving the school grounds or by engaging in disruptive protest activities while exiting the building.

Limits to Students’ First Amendment Rights

It is often noted that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.  The U.S. Supreme Court has repeatedly affirmed that students at school do have rights under the First Amendment of the U.S. Constitution.   These rights, however, are not unlimited. 

For instance, a student does not have a First Amendment right to take part in activities that materially and substantially disrupt the work and discipline of the school.  The landmark U.S. Supreme Court case Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), illustrates this tension.  In this case, the Court found that students were entitled to wear black armbands during the school day in protest of the Vietnam War.  Importantly, the Court concluded that there were no facts present that might reasonably have led school authorities to forecast any substantial disruption of or material interference with school activities, and the students did not interrupt or intrude in any school affairs; rather, the students merely wore the armbands as a symbol of their disapproval of the Vietnam War and to influence others to adopt their views.  Consequently, this form of expression was protected under the First Amendment.

There is little guidance from courts in Wisconsin and the Seventh Circuit addressing the specific issue of whether students might have a First Amendment right to walk out of class during the school day.  The Ninth Circuit Court of Appeals, however, has considered this issue.  In Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009), the Court concluded that “the school was entitled to enforce the rule against truancy even when the students sought to leave for expressive purposes. . . . [The students’] act of leaving campus was not a constitutionally-protected activity . . . .”  This case is not controlling on school districts in Wisconsin, but nevertheless, Wisconsin school districts should take note of the decision and treat an unexcused absence relating to a demonstration/walkout in accordance with school district policy and state law just as the school district would do in any other instance involving an unexcused absence.  Indeed, a failure to enforce the school district’s normal attendance practices may open a school district to liability for injuries or any other ills that occur during a demonstration/walkout, or to claims that the school district has engaged in impermissible viewpoint discrimination.  (A school district may, however, seek to limit occurrences of unexcused absences in the first place by creating alternatives for students, as described toward the end of this Legal Update.)  Finally, a school district may not impose greater punishment on a student for participating in a demonstration/walkout than it would impose on a student in any other typical instance of unexcused absence.

Staff Participation in a Demonstration/Walkout

School district employees have First Amendment rights to express themselves and participate in political protests and demonstrations.  However, staff members do not have a right to leave their work duties behind for purposes of participating in one or more of the demonstrations/walkouts discussed herein.  Indeed, it is unlikely that staff participation in the demonstrations discussed herein would constitute protected concerted activity, as these demonstrations do not relate to the requisite subject matter for such a finding (that is, these demonstrations do not appear to be challenging a local school district’s wages, hours, and/or other terms and conditions of employment).  In addition, even to the extent that one or more of the demonstrations could be found to implicate the concept of protected concerted activity, it is likely that any staff member who participated in a demonstration/walkout of the type contemplated herein would be engaged in a prohibited strike in violation of Wis. Stat. § 111.70(4)(L). 

Staff members’ requests to be absent on the day of a demonstration/walkout will need to be evaluated on a case-by-case basis in accordance with a school district’s attendance policies and practices in order to determine if they are legitimate and/or to determine whether they must be approved.  School district officials may be proactive by notifying staff that requests for leave on the dates identified for the demonstrations/walkouts will be scrutinized, so as to prevent the misuse/abuse of paid and unpaid leave. 

First Amendment Rights of Employees Generally

School district employees have First Amendment rights and employees are, as citizens, permitted to speak about political matters.  Students are likely to ask teachers and other staff members about their opinions regarding the demonstrations/walkouts and/or gun violence and gun control. 

The U.S. Supreme Court has specifically held that when evaluating a teacher’s First Amendment rights, there must be a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern, and the interest of the public employer in promoting the efficiency of the public services it performs through its employees.  However, when it comes to classroom instruction, the Seventh Circuit Court of Appeals has held that a school district may prohibit teachers from introducing their personal opinions regarding various topics.  (“The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.”  Mayer v. Monroe Cty. Cmty. Sch. Corp., 474 F.3d 477, 480 (7th Cir. 2007)). 

Ultimately, school district officials should be careful when taking action that restricts an employee’s speech whenever that speech does not clearly interfere with the employee’s ability to carry out his or her job duties.

Alternatives

School district officials may decide that they would like to facilitate students’ ability to participate in discussions surrounding the planned demonstrations/walkouts by creating an alternative, school-sanctioned event.  This might take the form of providing a forum for students on school grounds to discuss gun violence and gun control during one or more of the scheduled demonstration/walkout times.  Such an approach may have the benefit of decreasing the number of student absences while providing students with a supervised, controlled environment in which students may express their viewpoints.  To the extent that a school district chooses to create such an alternative event, school district officials must be careful to avoid inhibiting the expression of different viewpoints, consistent with a school district’s normal policies and practices relating to student expression.

Additional Considerations

When students engage in protests/walkouts, there is a concern about their safety and security.  School district officials should maintain an open dialogue with local law enforcement agencies in the weeks and days leading up to the planned demonstrations/walkouts.  Indeed, if school district officials have information about the nature of a particular demonstration, discussing these details with the police will enable the police to take any steps necessary to ensure that any demonstrations that occur are safe and secure. 

School district officials may also explain the school district’s approach toward these demonstrations/walkouts to students and parents.  For instance, it may be wise to take extra steps to ensure that students understand attendance rules and expectations in advance of the planned demonstrations.  Further, if a school district plans to create alternatives to a demonstration/walkout, it may be helpful to solicit ideas from students and staff to ensure that these alternatives are executed in a manner that facilitates productive expression from all parties.

Conclusion

Ultimately, there is no one-size-fits-all approach to apply to the issues discussed in this Legal Update.  Consequently, as school districts and communities discuss and work to address gun violence in schools, school district officials will need to continue to thoughtfully approach demonstrations/walkouts and related issues that arise on a case-by-case basis.

For questions regarding this article, please contact your Strang, Patteson, Renning, Lewis, & Lacy, s.c., attorney.

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