Let Them March: Schools Should Not Censor Students
Student walkouts have protections under the First Amendment
School administrators across the country have a choice to make this week. Judging from pre-emptive censorship efforts in two districts, some of them are going to get it wrong.
To mark the one-month anniversary of the Feb. 14 deadly school shooting in Parkland, Fla., students nationwide plan to walk out of school for 17 minutes to demand their state and local representatives address gun violence. Students, who are among the organizers of the ENOUGH National School Walkout on March 14 and a separate day-long National School Walkout on April 20, are using social media to rally classmates. In a statement posted to Instagram and Facebook, student organizers call their joint efforts “part of an escalating force in a longer fight.”
Yet, in at least two school districts, administrators are seeking to silence student voices with threats of discipline. In a now-deleted public Facebook post, Superintendent Curtis Rhodes of the Needville Independent School District, near Houston, warned against student participation in any type of protest during school hours. He threatened a three-day suspension for any participating student because, he wrote in the post, students “are here for an education and not a political protest.”
A letter to the district’s families also declared that parents’ notes excusing students would not alleviate the discipline. Three civil rights groups have since sent their own letter to Rhodes protesting his stance. A similar pre-emptive communication in the Waukesha school district in Wisconsin sought to assure parents that it did not organize or condone walkouts.
The censorship efforts raise two intriguing legal questions. First, are these acts of expression protected under the First Amendment? And, second, what rights do parents have to support their children’s efforts in the face of school or district discipline?
We can address the first question with the landmark 1969 U.S. Supreme Court case Tinker v. Des Moines. The case involved a group of Iowa high school students, including siblings Mary Beth and John Tinker, who wore black armbands to school in support of a truce during the Vietnam War. Tipped off to the students’ intentions, the school district passed a policy prohibiting the action. The Tinkers sued the district, and their case made it to the highest court in the land, where they won.
Justice Abe Fortas, writing for the majority in the case, noted that the right to free expression did not end “at the schoolhouse gate” but could be regulated if such expression causes a “material and substantial” disruption to the school day. But schools should use that regulation sparingly, as “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”
Does a planned, peaceful protest—as this week’s walkouts advocating stricter gun laws and increased school safety measures are slated to be—pose the threat of disruption? The high court’s clear guidance to schools is to consider the realistic possibility of disruption. In that process, schools have the space to explore how they might work around disruption and still allow the experience of pure political speech like armbands, speeches, or walkouts.
The second question, regarding parents’ rights, calls for separate analysis. The decision by some schools to ignore parental consent for their child to miss class for a walkout runs counter to many existing absence policies. Any parent with a child in braces recognizes the need to take her out of school for an appointment. Parental permission to be out for protest, these districts appeared to propose, is not the same.
The judicial record would disagree. While all 50 states and the District of Columbia have compulsory education laws to ensure an educated citizenry, the U.S. Supreme Court has upheld the rights of parents to choose where their children get that education and barred schools from forcing students to express ideological sentiments that conflict with their family’s deeply held beliefs.
In the case of walkouts, parents are supporting a foundational purpose of education—the creation of the citizen—by endorsing civic engagement. The students are not walking out in some act of youthful arrogance or privilege to, say, demand WiFi in school so they can use Snapchat. Instead, the student organizers write in their statement, they want to “send a strong message to our elected officials that we want to be safe, particularly in our schools.”
Isn’t this also exactly the kind of civic participation schools should be encouraging? We often focus on the legal aspects of free expression, yet there’s also an ethical argument. No doubt districts have a responsibility to ensure orderly schools. But as anchors within their communities and vital child-development spaces, schools have a broader mission to help students emerge as participants in their democracy.
The First Amendment is often about what government cannot do—in this case, censor student expression without proof of disruption. Yet, the First Amendment is also about what government can do. As Justice Fortas reminded schools, they are not “enclaves of totalitarianism,” nor are students “closed-circuit recipients of only that which the State chooses to communicate.” In this case, school districts can and should allow students the right to political speech within reasonable limits.
This links to an element of the Tinker case that is often forgotten: Mary Beth and John’s little sister, Hope, who was in elementary school at the time, also wore a black armband. Though the school did not discipline her, she did face teasing on the playground. Her teacher, Linda Ordway, stood up for her—and for the First Amendment.
That’s exactly what educators should be doing today. The students have said, “We want to learn. We want to live. Please support us.” Educators have no need to support the content of students’ expression. But in a free society, they have every obligation to stand up for their students’ right to speak.