Student protests are not new. While there is a lot of conversation, organization and publicity around walkouts planned in the next month, your district has probably dealt with various forms of student protests in the past. This may have included wearing a certain item, kneeling while others stand, or walking out of class in protest (or support) of a cause, policy, person or law. As you have handled these situations in the past, one of the best things that you can do is look at past practice and current procedures (Board policy JFI is a good place to start). After reviewing this and other guidance, you may want to make changes to how you handle these situations.
What do we do if students get up and walk out of class to protest?
Generally, you should treat this as any other student who leaves class without permission. This will likely include accurately recording the student’s attendance and possibly an attendance-related consequence.
Can we discipline for participation in a protest?
You can discipline for activity that causes a disruption to the educational program. Simply getting up and walking out of class likely will not create a significant disruption. However, loudly voicing the protest as they leave may cause a disruption. If you would normally discipline for the activity (regardless of the content or viewpoint of what is being expressed), you could discipline for the disruption. You must be extremely careful not to discipline for the content of the speech or the purpose of the protest, rather discipline must be fairly and consistently imposed based on the conduct.
Is an absence for a protest considered excused?
The term “excused absence” is used several times in statute, but it is never defined. The law does allow an absence to be excused if “caused by the pupil’s sickness, by the sickness of some member of the pupil’s family or by an emergency” and grants schools discretion in excusing additional absences. ORS 339.065. You want to follow your current attendance procedures and past practices in situations involving protests. Some districts allow parents to excuse a child for any reason, others allow certain students to excuse themselves. In determining whether or not to allow the absence to be excused, you may also want to consider what you would excuse an absence for: attending athletic activities, vacations, visiting colleges, attending the legislature, etc.? Where, if at all, does a protest fit into this?
Can staff participate in the protest?
Staff members are prohibited from participating in political activity during work time and district resources cannot be used to promote political activity. Consequently, staff members should remain at their assigned location during a protest and perform their assigned tasks. This would also be the case for a staff member during a prep period. Even though the staff member may not be assigned specific duties during that time, it is still considered work time.
Staff members can participate in protests outside of the work day.
Can we allow the protest on district property?
You can, but there are a number of things to be aware of:
- Avoiding viewpoint discrimination. If you allow a gathering or protest on one side of the issue, you must allow it for the other as well. You may also have to accommodate future protests on various other issues.
- Supervision. If you are allowing students to gather on district property, it is going to be a school-sponsored activity and you must provide supervision and maintain control of the situation. Do you have adequate staff to supervise?
- Non-student participation. Depending on where the walkout is staged, you may have non-students joining the protest. You may want to limit who can attend.
Are we setting precedent by what we allow?
Yes. If you allow one group to use district property for a protest, you may have to allow other groups in the future to avoid viewpoint discrimination.
Should an administrator follow the students off campus to supervise?
If the activity is being supervised by district staff, it may be considered to be a school-sponsored activity. Consequently, the district would have a responsibility to keep the students safe and there is at least a perception of the school endorsing the speech of the students.
What can we do to prepare for a walkout?
- Review your current practices. Do you have policy? What are the procedures and past practices around excusing absences? What have you done in the past if there was a protest? How do you treat students who leave class for non-political reasons? Your practices may vary by school within the district.
- Develop a plan. What are you going to do if students walk out? What if they congregate on district property? Do you need additional supervision? What should a teacher in a class where only a few students are left? What will happen if non-students come to the school to join the protest?
- Communicate expectations to students, staff and parents. What do you expect of students who join the protest? What would result in discipline? What needs to be done in order to excuse an absence? Can the student make up missed work? Will students be supervised?
- Collaborate with law enforcement. This is not to punish students, but to keep everyone involved in the protest safe. Any time there is a protest, there is the potential for a counter-protest and potential violence. Law enforcement can help ensure the safety of those involved.
- Instruct. Use this as an opportunity to talk to students about rights. Your classes (including social sciences) may discuss the issues, review historical protests and other relevant civics issues. You could hold assemblies or community nights, invite community leaders and encourage students to understand and exercise their rights appropriately.
OSBA Webinar on Student Rights Regarding Protests, Tuesday, March 6, 2018, 12:00PM
NSBA Guidance Navigating Student Walkouts & Mass Protests, February 2018.
If you have any questions, please contact OSBA Member Services Attorney Spencer Lewis, or 1-800-578-6722.