Today, the ACLU of Virginia sent a letter to all public schools superintendents in Virginia regarding the re-emerging issue of the nature and scope of student First Amendment rights in schools. As school administrators are actively working to develop legal and operational responses to the possibility of student walkouts and other expressive activities in schools, the ACLU-VA discussed the principles that should guide both student and school administration in deciding appropriate action in the case of students participating in First Amendment protected activities. The letter also urged school administrators to encourage civic participation and protect freedom of expression in schools.
"As you know, public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)," wrote the letter. "School officials may prohibit student speech (which the threats to impose discipline have the effect of doing) only when they reasonably forecast that the student expression “will substantially interfere with the work of the school or impinge upon the rights of other students.” Id. at 508. It is not enough that school officials have an “undifferentiated fear or apprehension” of a disturbance. Id. Rather, there must be "substantial facts which reasonably support a forecast of likely disruption." Quarterman v. Byrd, 453 F.2d 54, 58 (4th Cir. 1971).
"Among other things, we question whether a peaceful protest even on school grounds during school hours could or would cause the kind of “material and substantial disruption” or educational activities at school necessary under applicable case law to justify disciplinary action or take the students’ conduct outside the bounds of their protected First Amendment rights. This is particularly true given that some schools already have demonstrated that a student walkout can be a teachable moment and an opportunity to reinforce a positive message about community and civic engagement. Thus, it is difficult to understand how any school can defend a blanket rule applied in advance to bar any such expressive activity."
"In addition, because schools may not make distinctions based on the content of a student’s speech or expressive activity in imposing discipline, any discipline for an “unexcused” absence imposed on a student participating in an out of class on campus protest or an offcampus protest related to “school gun violence” must be consistent with and no more severe than discipline imposed for other “unexcused” absences."
The ACLU of Virginia also advised students who believe they are disciplined more harshly simply because of the content of their speech to file an intake with us.
"From the ACLU of Virginia’s perspective, a public school should always seek to impose the fewest and narrowest restrictions on student expression possible given the special circumstances of the school environment. We strongly question whether being absent from class for a few minutes or even a day creates a substantial disturbance or disruption of school activities or infringes on the rights of other students."
"Virginia public schools and school divisions would be well-advised, under all the circumstances, to adopt an educational rather than a disciplinary approach to these activities. Just because you can argue that you have the power to discipline students for protesting or walking out doesn’t mean you should choose to do so."
You can read the full letter and walkout guidance in the attached documents below.