Student Activists, School Walkouts, and the First Amendment
February 26, 2018
Student activists engaged over the battle for civil rights and war protests changed the course of American history. Today, this feeling of student activism seems to be returning—its latest iteration inspired by the horrors of mass school shootings.
To have their voices heard, students exercise their First Amendment freedoms of expression to speak out against a failure to change gun laws, petition government officials to amend laws, and assemble together peaceably to amplify their voices and concerns.
This is not a new phenomenon. In March 1961, nearly 200 young people marched down the streets of Columbia, South Carolina, to protest segregation laws, voting discrimination, and other civil rights abuses. They carried signs bearing messages such as “Down with Segregation” and chanted religious hymns.
While many of these student-protestors were from Allen University and Benedict College, some were high school students. They knew they would face arrest from local law enforcement—and indeed they did. Ultimately, the US Supreme Court vindicated their free-expression rights.
“The circumstances in this case reflect an exercise of these constitutional rights in their most pristine and classic form,” wrote Justice Potter Stewart for the Court in Edwards v. South Carolina (1963). “The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.”
Those high school students who participated in that historic rally from Zion Baptist Church to the state courthouse presumably skipped school to participate. They took a risk, made their voices heard, and changed history.
Today, many high school students are motivated to have their voices heard. In an age of mass school (and other public) shootings, students petition for a change to the nation’s gun laws. Student walkouts have and will occur in the future. Previously, students have engaged in walkouts to protest change in immigration policies, seizures of student cell phones, overly harsh school disciplinary policies, and other events.
But, while the First Amendment protects their right to be free from criminal charges of disorderly conduct or breach of the peace, does the First Amendment protect their right to engage in a school walkout?
Students certainly possess First Amendment rights at school. The US Supreme Court famously told us so in Tinker v. Des Moines Independent Community School District (1969), stating that students “don’t shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But, those rights are tempered by the reality that they must be considered “in light of the special characteristics of the school environment.”
Lower courts have held that student walkouts disrupt classes and distract the students who remain in school. The Ninth Circuit had held that a school can enforce a content-neutral anti-truancy rule against those students who skip school to protest.
While the government can’t “make criminal the peaceful expression of political views,” they can enforce policies and rules designed to ensure an orderly educational process.
But, while schools may be able to punish students for engaging in walkouts, should they? As my Newseum Institute colleagues Gene Policinski and Lata Nott explain, school officials should engage students and “turn the event into a teachable moment.”
After all, the primary purpose of education is to help students become fully functioning citizens in this constitutional democracy. Students participating in peaceful protests on important social issues are engaged members of society.
Isn’t that what the First Amendment is all about?
About the Author
David L. Hudson, Jr. is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law. He is the author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools.