On Wednesday, March 14, 2018, thousands of high school students across the nation walked out of their classes in remembrance of the 17 individuals murdered at Marjory Stoneman Douglass High School in Parkland, Florida, and to protest gun violence in the United States. The protests came in many forms. Some groups, with support from district staff, congregated on athletic fields and solemnly released balloons, while others used their voices to make the point, shouting “We want change!” or “Enough is enough!” For the most part, the protests were peaceful, although some included shouting matches between those with opposing viewpoints.1

Student protests have long been a part of the educational experience,2 and the last few years have been no exception. For example, in November 2017, students at Brookline High School in Massachusetts walked out of class to protest what they believed to be a racially hostile environment;3 in February 2018, high school students in Houston walked out in protest of the U.S. Immigration and Customs Enforcement’s decision to detain a fellow student.4 Plus it is hard to forget the student athletes across the country that modeled Colin Kaepernick’s silent protest of kneeling during the national anthem.

Students in Oklahoma have also engaged in protests. Students across the Oklahoma City metro area joined the March 14 protests against gun violence,5 and John Marshall High School students did the same just one week before.6 Oklahoma students have even protested the Legislature’s inadequate funding of education.7 In short, student protests are not a new phenomenon and, arguably, have only grown in popularity.

THE STANDARD
In order to effectively advise school district clients how to prepare for and respond to student protests, it is important to educate them on students’ basic rights to free speech and expression. The foundational case regarding student speech and expression is Tinker v. Des Moines Independent Community School District (No. 21).8 In December 1965, as the U.S. was engaged in the war in Vietnam, a group of students in Iowa decided to wear black armbands to school as an expression of their disagreement with the war. Mary Beth Tinker and other students who engaged in the protest were sent home and informed that they were suspended until they agreed to remove the armbands. Rather than simply comply, the students’ parents sued the district, and in 1968 the U.S. Supreme Court granted certiorari.

The opinion, written by Justice Fortas, became the standard used to determine the constitutionality of regulating student speech. In the majority opinion, Justice Fortas stated that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”9 He went on to dismiss the argument that districts should be able to prohibit speech or expression based on nothing more than fear or concern that it could cause disruption. Rather, he explained that, to prohibit student speech or expression, district officials must be able to reasonably forecast that the speech or expression would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”10 The district must specifically articulate how the activity could materially or substantially disrupt their ability to operate the school.

Since the Tinker decision, the court has established a few other limitations on student speech that exist alongside the Tinker standard. Most notably, districts may prohibit speech or expression that is lewd, vulgar or obscene,11 that promotes illegal drug use12 or that is school sponsored, as long as the prohibition was “reasonably related to pedagogical concerns” (e.g., school-sponsored student newspapers).13

APPLYING TINKER
It is important to remember that student speech or expression is permitted unless school officials can reasonably forecast that it would materially or substantially interfere with the school day.14 The implication being that the prohibition of student speech is the exception, not the rule. To prohibit or later discipline students for speech or expression, district officials must examine the facts of each specific case and articulate how and why the activity would materially or substantially disrupt their ability to properly and safely operate the school.15 For example, student codes of conduct are adopted specifically to ensure the orderly operation of the school and the safety and well-being of students and staff, so speech that violates the code of conduct may be prohibited (e.g., protests that take place during class time or disrupts classes with excessive noise, behavior that includes failure to follow reasonable directives from staff, etc.).

Speech may also be prohibited when it creates risks to student safety or could damage school property (e.g., the passing out of materials that can be used to damage school property or endanger students, protests that actually damage school property, etc.).16 Also, school officials are well within their rights to prohibit speech that violates the rights of others, such as acts of bullying, harassment and/or discrimination. In fact, one court even upheld one district’s decision to prohibit the wearing of clothing that displayed the confederate flag, as district officials were able to point to past race-based incidents as evidence that the speech could cause major problems for the school environment.17 Also, as discussed above, speech or expression that is lewd or obscene or that promotes illegal drug use can always be prohibited, and school officials can regulate speech that
is school-sponsored.18

However, it is important to remember that speech should not be prohibited simply because it is uncomfortable or unconventional.19 As Justice Fortas so eloquently stated in Tinker, “Our history says that it is this sort of hazardous freedom – this kind of openness – that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.”20 For example, the 3rd Circuit Court of Appeals found that a school district’s decision to prohibit middle school girls from wearing bracelets stating “I ‘heart’ boobies,” which were worn to promote breast cancer awareness, was not based on a reasonable forecast of a material and substantial disruption to the school environment.21

PREPARING FOR STUDENT PROTESTS
It is important for school districts to proactively prepare for student protests. First, district boards of education should adopt a policy related to student protests or demonstrations. The policy should clearly and simply explain student rights of speech and expression, indicate that anything that materially and substantially disrupts the school day will not be permitted, and provide notice that students engaging in unprotected speech may be subjected to discipline in accordance with the student code of conduct. A simple, clear policy will provide a mode of operation for the district and notice to students that some forms of expression are not acceptable.

Second, district officials should be encouraged to review and understand district policies on student protests, and work with staff to ensure everyone understands their role if and when a protest occurs. Staff need to understand how to respond if the protest is acceptable, a violation of school rules but peaceful, a danger to students and staff, etc. A prepared and trained workforce will reduce the chances of disorder and safety issues.

Third, it is important to ensure that students understand acceptable and unacceptable speech, and the consequences for engaging in prohibited speech. Even further, if district officials obtain prior notice that a student protest will occur, it may be prudent to meet with students and offer an alternative method of expressing their opinions. When emotions are running high, a facilitated, safe manner of expression is always preferable and has the benefit of teaching students to engage in a constructive, civil manner.

KNEELING DURING THE NATIONAL ANTHEM
Kneeling during the national anthem as a form of protest grew in popularity after NFL quarter-back Colin Kaepernick began doing so during the 2016 season. His high-profile act caught the attention of professional and amateur athletes across the country, many of whom began doing the same. Since kneeling to protest racial injustice is a form of expression, the Tinker standard applies, and it would be hard to argue that the simple act of taking a knee causes a material and substantial disruption to the school day. It should also be noted that another Supreme Court case is applicable to this situation and arguably adds another layer of protection. Specifically, in West Virginia State Bd. of Educ. v. Barnette,22 the Supreme Court struck down a school board’s policy of requiring students to stand for the pledge of allegiance, stating that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”23 The court’s words surely apply to the anthem just as much as the pledge of allegiance, as both are similar patriotic expressions.

A student demonstration/protest policy, as described above, would cover any such national anthem protests. However, since the extracurricular setting is unique, it would be wise to ensure client districts have a plan of action. For example, if a district’s athletic teams are on the field or court during the anthem and one or more players engage in a peaceful protest that does not violate the student code of conduct or materially and substantially disrupt the school activity, the speech should not be prohibited. If school officials receive prior notice of a planned anthem protest, students should be reminded that actions in violation of the code of conduct will subject them to the consequences prescribed therein. If the district athletic teams generally remain in the locker room during the anthem, but one or more athletes express a desire to exit the locker room and peacefully protest, it will be up to the district whether to facilitate such an action.

In conclusion, the courts have consistently expressed two principles: 1) student speech and expression enjoys the protection of the First Amendment, even in the educational environment; and 2) there are clear (and sometimes not so clear) instances where school districts will be justified in prohibiting or limiting student speech and expression. It is important that school districts seek to understand this balance, as public schools are one arena in which young people learn how to be full participants in our democracy. As attorneys, we must guide our school district clients through these sensitive decisions, and enable them to cultivate and refine students’ abilities to contribute to our national discourse in a civil and effective manner.

ABOUT THE AUTHOR
Brandon Carey is a staff attorney for the Oklahoma State School Boards Association. He is a 2005 graduate of the OCU School of Law, where he served as editor-in-chief of the Law Review. Mr. Carey also obtained an LL.M. from American University Washington College of Law.

1. John Bacon and Cristal Hayes, “‘We deserve better’: Students nationwide walkout in massive protest over gun violence,” USA Today (March 14, 2018), www.usatoday.com/story/news/2018/03/14/thousands-students-across-u-s-walk-out-class-today-protest-gun-violence/420731002/.
2. Tinker v. Des Moines Independent Community School District (No. 21), 393 U.S. 503 (1968). See also Melinda D. Anderson, “The Other Student Activists,” The Atlantic (Nov. 23, 2015), www.theatlantic.com/education/archive/2015/11/student-activism-history-injustice/417129/.
3. Meghan E. Irons and Alyssa Meyers, “Brookline students walk out to protest racial climate in wake of videos,” Bostonglobe.com (Nov. 30, 2017), www.bostonglobe.com/metro/2017/11/30/brookline-high-school-students-walk-out-class-protest-racial-climate-wake-video/wSB5mcT74lHeiAleHlyszO/story.html.
4. Grace Guarnieri, “Students Walk Out of Texas High School After Classmate Detained by ICE,” Time (Feb. 14, 2018), www.newsweek.com/students-high-school-protest-detained-ice-807400.
5. Tim Willert, “Students walk out of class to protest gun violence,” newsok.com (March 14, 2018), newsok.com/article/5587044/students-walk-out-of-class-to-protest-gun-violence.
6. “Oklahoma City students walk out of class to protest gun violence,” KOCO.com (March 7, 2018), www.koco.com/article/live-oklahoma-city-students-walk-out-of-class-to-protest-gun-violence/19156140.
7. See Tim Willert, “Hundreds of students walk out to protest budget cuts,” newsok.com (May 16, 2016), newsok.com/article/5498469; and Kyle Hinchey, “Bartlesville students walk out of class in protest of $22 million in state cuts to education,” tulsaworld.com (Feb. 24, 2018), www.tulsaworld.com/news/education/bartlesville-students-walk-out-of-class-in-protest-of-million/article_a62081e7-a771-570c-82eb-06cbf4c42f93.html.
8. 393 U.S. 503 (1968).
9. Id. at 506.
10. Id. at 509 & 514.
11. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).
12. Morse v. Frederick, 551 U.S. 393 (2007).
13. Hazelwood Sch. Dist. V. Kuhlmeier, 484 U.S. 260 (1988).
14. Tinker at 509 & 514.
15. Id. at 509.
16. See Taylor v. Roswell Independent School District, 713 F.3d 25 (10th Cir. 2013). The court found that the district did not violate students’ First Amendment rights by prohibiting a religious student group from continuing to pass out rubber fetus dolls to students, which were meant to convey their anti-abortion beliefs. The evidence indicated that the dolls were used to damage school property (i.e., bounced against walls, stuck to ceilings, used to clog toilets) and risked student safety (i.e., throwing the dolls).
17. Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013).
18. 551 U.S. 393 (2007) & 484 U.S. 260 (1988).
19. Tinker at 509.
20. Id. at 508-509.
21. B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293 (3rd Cir. 2013).
22. 319 U.S. 624 (1943).
23. Id. at 642.