The Potentially Slippery Slope of Student Walkouts

Lusk Albertson PLC's picture

There's no doubt that the Parkland shooting left the nation reeling. Schools across the nation are suffering a spike in threats that have caused numerous school closures. On the more constructive end of the spectrum, schools have also seen an increase in students protests, including, most notably, the national student walkouts. Some faculty and administrators may tolerate – or even applaud – students' efforts to peaceably voice their consternation with the status quo of gun control in the United States. But what happens if you're a school administrator and, first thing tomorrow morning, a group of students – smaller than the group participating in the gun control walkouts – tells you it plans to walkout in favor of gun rights the following week? You've permitted the protests by gun control advocates; so you have to let the gun rights advocates have their chance too, right?

Maybe not. To figure out what to do, you're going to have to go back to the Vietnam era. In the landmark case Tinker v Des Moines Independent Community School District, students were suspended from school after they refused to remove black armbands symbolizing their protest of the Vietnam War. The Supreme Court of the United States famously declared that students and teachers don't "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Tinkers simply had not caused enough of a disturbance to warrant suppression of their speech.

Subsequent decisions from the Supreme Court and other courts around the country refined Tinker. In a nutshell, if student speech causes enough of a disruption or is enough of a breach of decorum – sexual innuendo in a student election speech comes to mind – then a school doesn't have to let the speech go unchecked.

Back to hypothetical question of the gun rights walkout, the question remains: do you have to let the students conduct their counterpart protest? The answer still isn't easy to discern. There's nothing that says a school must tolerate student counter speech every time there's student speech. But, in our scenario, the school has tolerated large scale student walkouts, which by any reasonable metric caused a disturbance in the regular school day. You can't restrict the speech simply because you dislike its viewpoint, so that's out. Ultimately, the situation is unenviable. If you accept the student protest, you're inviting more disturbance and, worse, setting the precedent that you'll give a venue for student counter speech every time there's student speech. If you suppress the protest, and the gun rights advocates file a lawsuit, you might have a hard time convincing the court that the smaller gun rights walkout would cause a greater disturbance than the gun control walkout.

There's no silver bullet advice here. Maybe your reason for allowing one and not the other is that, unlike the smaller walkout, the backlash from prohibiting the larger walkout would actually cause more disruption than the walkout itself. Maybe there's another reason, not based on viewpoint, that justifies a decision to distinguish the walkouts. Whatever the rationale, there's no guarantee a court will side with you. One thing is certain, however: as the student walkouts continue, schools nationwide are more likely to encounter a scenario like the one posed in this article. It would be wise to have a flexible plan in place before that happens and, perhaps, to consult with legal counsel before making a line in the sand with respect to student walkouts or protests.