We Nevadans know all too well the pain and trauma of a mass shooting, and as students across the country mobilize to force change in the wake of the Parkland, FL tragedy, the issue of free speech in schools is once again at the forefront of American dialogue. The ACLU of Nevada supports your right to be heard on this issue, and we encourage you to contact us at firstname.lastname@example.org if you face any issues related your political speech.
It is well established that students do not “shed their constitutional rights to freedom of speech and expression at the school house gate” (Tinker v. Des Moines Independent Community School District, 1969). The ACLU has fought for this principle since Mary-Beth Tinker entered her Des Moines, Iowa classroom in 1965 wearing a black armband in protest of the war in Vietnam. Indeed, we defended the right for students to wear clothing expressing anti-abortion views, support for the LGBT community, and even the right for students to protest the ACLU.
Schools may only punish speech or expression at school if it causes a “material” or “substantial” disruption on campus. This means school administrators must show that the speech or expression will actually interfere with school activities or with the rights of other students. It is constitutionally impermissible to punish a student for the mere act of walking out of class without evidence that doing so caused a material and substantial disruption.
We think your school should be working with you to avoid possible disruptions. School administrators, for example, can take reasonable steps to plan for a silent classroom walkout. They can also work with students to provide an alternative activity. Some school administrators are working with students to engage in symbolic activities such as walking around campus seventeen times or placing desks in the common area of the school in remembrance of the lives lost in the Parkland shooting.
Even if a school can demonstrate that a walkout caused a material or substantial disruption, they cannot excessively punish a student for participating in protest activity, or enact harsher punishment than would be given for a similar unexcused absence. The First Amendment to the U.S. Constitution prohibits school officials from engaging in viewpoint discrimination or punishing students because of their expression. Punishing a student more stringently for an absence associated with protest activity than for an absence associated with any other activity is unequivocal viewpoint discrimination. Thus, the consequences for a student who engages in civil disobedience by missing class to attend a protest must be the same as a student who misses class for any other purpose.
If you're interested in participating in a protest, the first thing you should do is look up your school's policies.
In Nevada, children between 7 and 18 years old are required to attend school. A single unexcused absence is considered a “truancy,” the punishment for which is parental notification. A student is considered “habitually truant” after accruing three or more unexcused absences in one school year. School administrators may punish a student for habitual truancy after an administrative hearing and punishments are limited to a citation or revocation of driving privileges for up to one year. If a student chooses to participate in a walkout protest and is marked tardy or absent they should only be subject to these punishments already prescribed by law.
Several students have contacted our office to report threats by school officials to withhold honors diplomas, remove students from sports teams, and to suspend students for participating in planned walkouts. These forms of punishment far exceed those permitted by statute and are constitutionally suspect. The ACLU of Nevada takes these allegations seriously and will investigate each incident of excessive punishment reported to our office.
From Des Moines, to Parkland, to here in Nevada, we will continue to defend the right of students to engage in constitutionally protected speech and expression. We hope school administrators will do the same by creating an environment where students can meaningfully express their views.
We warned Nevada school districts about all of this on Thursday. Contact us if you have any problems at email@example.com.
The ACLU of Nevada staff