First Amendment rights at center of clash between Pennsylvania schools, students over ICE walkouts

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By AMANDA FRIES
Spotlight PA

READING — Do students have the right to leave school as a protest tactic?

Nationwide, including in Pennsylvania, communities are navigating this question as students organize walkouts against immigration enforcement actions.

The U.S. Supreme Court established in Tinker v. Des Moines in 1969 that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Schools have latitude to restrict speech on their premises, but experts say administrators can do so only if a walkout is likely to cause a substantial and material disruption to their operations.

“School officials should not censor public speech unless it meets the standard of likely to cause a substantial and material disruption, and that should be consistent across school districts,” Maura McInerney, legal director at the Education Law Center – PA, told Spotlight PA.

But how that plays out on the ground has differed across the state. In Quakertown, a school walkout turned violent when police chief Scott McElree rushed into the crowd of students and wrapped his arm around a girl’s neck. Meanwhile, in Reading and Phoenixville, students organized and participated in demonstrations without incident.

Administrators can discipline students for breaking school rules, like skipping class. But to avoid restricting free speech rights, the punishment must not be more severe than it would be for skipping class under different circumstances, McInerney said.

“It cannot be based on fear, mere speculation, or a concern that it’s a controversial topic. That really goes to the heart of the First Amendment right.”

Here’s what to know about Pennsylvania students’ rights to protest.

What are students’ First Amendment rights?

Public school students have the constitutional right to express themselves on campus, including speaking out, writing articles, forming groups, handing out flyers, and petitioning school officials.

But schools can prohibit certain forms of expression, including speech that substantially disrupts the learning environment, violates the rights of others, or is lewd or vulgar, according to the Education Law Center’s fact sheet. All of this is determined by the facts of the case.

When public schools in Berks County canceled planned student walkouts, administrators cited safety concerns. Governor Mifflin School District officials would not comment for this story, but a 9th grader told CBS21 at the time that students had been planning the protest for weeks with administrators’ approval until negative emails from parents sparked the reversal. Some of the parents called for students to be punished.

McInerney said more details are needed to understand the district’s justification for prohibiting the walkout, but community members opposing students’ position is alone insufficient to prohibit First Amendment activity.

“It can’t be speculative. It can’t be based on the content of the position. It can’t be emanating solely from fear that it’s unpopular,” she said.

In a March article, the ACLU of Pennsylvania underscored that school responses to student demonstrations may or may not be unconstitutional depending on the details of the case, but generally advised that students can be stopped from walking out, or missing class without permission.

Attorneys also said schools could prohibit walkouts during school hours unless such actions are for some other reason permitted.

Can students be disciplined?

While students have the right to assemble with their peers about issues unrelated to school (as well as to protest and petition school officials), they can be punished for missing classes without permission under school policies and “content-neutral rules,” McInerney said.

“You can receive the same punishment that you would have gotten if you had walked out of the school building for any other reason. It can’t be more severe,” she explained. “It can’t be imposing a harsher punishment for those who engage in a political activity.”

Students in the Wilson School District weren’t disciplined for “expressing their viewpoints” when they walked out on Feb. 18, according to a statement from school administrators. Any punishment was associated with students violating school policy, including “leaving class or the building without permission and failing to follow staff directions.”

Most schools have rules prohibiting students from leaving class or the building without permission, the ACLU’s guide on walkouts says. If the school knows you’re going to violate this rule or any other one, they can step in.

“But this doesn’t mean that the school’s decision to prevent students from protesting was a wise one,” the March 5 post said. “You have the right to criticize the school’s actions in preventing you from participating in a walkout, including by talking to the media, using your own time and resources when you are not at school.”

How have Pa. schools responded to walkouts?

While some residents pointed to district board policies on skipping class to justify prohibiting walkouts, students’ ICE protests forced schools to grapple with political tensions on the polarizing topic within their communities.

In the Governor Mifflin district, some community members used social media to press school officials to stop students. Some adults even filmed middle schoolers participating in an earlier walkout, citing the video in their calls to discipline the students and prevent high schoolers from organizing a walkout on Feb. 12.

The efforts worked, in part. District residents opposed to the walkout declared victory after school officials notified the community that, “due to safety concerns,” they would not allow students to participate. On Feb. 12, some high schoolers walked out anyway. Whether they faced discipline is unclear. Superintendent Lisa Hess declined to comment on this story.

Other districts, like Reading’s and Phoenixville’s in Berks and Chester Counties, respectively, saw hundreds of students participate in ICE walkouts without major incident.

The school districts did not respond to requests for comment for this story.

Students have been protesting for decades, McInerney said, pointing to demonstrations opposing apartheid in South Africa, supporting the Black Lives Matter movement, and objecting to school shootings. Participants protested peacefully, she said, which is a right that “must be protected.”

“We want to encourage students to exercise these rights. We want them to be civically engaged,” McInerney said. “That’s an important part of our public education system.”

When Joseph Yarworth was superintendent at Schuylkill Valley School District in the 1990s, officials keen on cutting programs took hold of the board, prompting students to protest. Students who participated were not disciplined if they returned to class after the demonstration, archived news reports show.

Yarworth told Spotlight PA during a recent interview that students who protested benefited from the action.

“We should very much be encouraging people not to hide their opinions. This is a democracy, correct?” Yarworth said. “I felt it was a very good experience for students to learn about what happens when you are being affected by something.”

This story has been updated to reflect the correct title and organization of Maura McInerney.

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