Legal Update Memo No. 08-2020 – Student Protests (K-12)

Download pdf: 08-2020 – Student Protests w attachment (CDC)

The purpose of this Legal Update is to summarize the free speech rights of students, free speech rights of employees, and to address student walkouts.

Student Freedom of Speech

Students have free speech rights under the First Amendment.  Students in California have additional free speech rights in accordance with Education Code section 48907:

(a) Pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities…

However, student free speech is subject to limitations:

…expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.

Therefore, students can discuss during non-instructional time (lunch, passing period, recess, before and after school, etc.), in a non-disruptive manner, their concerns related to, for example, gun violence and the steps that should be taken to reduce student shootings.  The students can publish articles on the topic in school newspapers, can advocate for changes in gun laws, can advocate for political change with elected representatives, can post appropriate flyers on a school bulletin board authorized for student postings, can wear non-disruptive clothing that advocates political action, etc.

However, students’ free speech in the classroom can be limited if the speech is disruptive.  For example, a student could be disciplined if in math class a student wants to discuss a current political issue and refuses to direct the conversation to the current math lesson.  A student could also be disciplined if the student wore a shirt that showed in graphic detail the effects of a shooting.  Students can also be disciplined for advocating the violation of school rules (such as encouraging all students to walkout of class during class time or leave campus during the instructional day).

Employee Freedom of Speech

While employees also enjoy free speech protections, employees’ speech is limited when the employee is carrying out his or her official duties.  So, for example, a teacher could discuss during a government or history class the importance of a “grass roots” campaign to cause political change.  However, a teacher could be disciplined for advocating that students violate school rules by a walkout of class during class time or leaving campus during the instructional day.  A teacher could also be disciplined for leaving campus to accompany students on a walkout unless specifically authorized by an administrator.

We encourage administrators to work with employees and employee associations to address any employee questions and to enlist their support in working with the students to develop alternatives to avoid student disruptions such as a walkout.

Student Walkouts

We encourage schools to engage in a pre-meeting open dialogue with students, parents, employees, local law enforcement, and other relevant stake holders regarding appropriate free speech within the school environment and appropriate student protests.  This could occur in an after-school meeting where school administrators and law enforcement representatives share their safety concerns, which would then provide student and community members with guidance in organizing safe and appropriate protests.

Also, please be aware that there may be potential counter-protesting students, especially in rural areas, supporting the right of firearm ownership.  Any counter-protests should be addressed in the same manner as other student speech discussed in this Legal Update.

Students should be encouraged not to leave class during class time or campus during the instructional day or to otherwise engage in disruptive activities.  Rather, site administrators could discuss adjusting the school schedule to allow for a recess or a school assembly to allow students to engage in free speech without disrupting instruction.  This preplanning for alternative activities could occur with student leaders on campus.

Students that violate school rules can be disciplined such as through detention, assignment to Saturday school, assignment of a writing project, and other means of correction.  Students in the fourth grade and higher can also be suspended for disrupting school activities or willfully defying the directives of school employees (administrators, teachers, campus supervisors, etc.) under Education Code section 48900(k); however, suspension should only be imposed when other means of correction fail to bring about appropriate conduct in accordance with Education Code section 48900.5.

School employees should not advocate, direct, or encourage students to walkout of class during instructional time or to leave campus.  If students leave campus during the instructional day to demonstrate, then school staff should strongly consider not accompanying students off campus as this may result in the assumption of liability for actions that occur with the students off campus.  Rather, students should be encouraged not to leave campus and directed to alternative activities on campus (such as a student assembly).  The parents of students who leave campus during instructional time should be contacted and informed their child has left school and the need for them to retrieve their child.  In some situations, it may be appropriate to contact law enforcement for assistance if there appears to be the risk of danger to the students leaving campus during the instructional day.  We do not recommend physically intervening to prevent a student from leaving campus.

Even in the case of a mass student walkout, administrators should ensure that instructional activities are in place for those students that do not engage in the walkout.

Very likely, any losses in Average Daily Attendance (“ADA”) due to student walkouts will not be recovered.  Please see the helpful article from School Services of California on this issue.[1]

In summary, current events allow for an opportunity to teach students how to engage in free speech activities that are safe and in compliance with school rules.  We encourage school districts to engage in preplanning in an open discussion with relevant stakeholders to develop appropriate alternative activities to a walkout while at the same time enforcing school rules to keep students safe and secure during the instructional day.

Included with this Legal Update is a four-page “Questions and Answers Regarding Student Protests” from the Orange County Department of Education, Schools Legal Service, which has generously authorized our office to distribute this document with this Legal Update.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2020 School and College Legal Services of California

 All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.

[1] “Ask SSC… Is There Any Relief From the Loss of ADA Due to Student Protest” For Publication: March 9, 2018, Volume 38, No. 5.