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Can students get in trouble for Wednesday’s #NeverAgain school walkouts?

As school walkouts are planned following the mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., students have asked: Can we get in trouble for walking out?

MORE COVERAGE:

» ACLU warns Ohio schools: We’re watching how you handle student protests

»  Emails reveal local schools wrestling with #NeverAgain student protests

» Hundreds of local students walk out, more planned in coming days

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The answer depends on how the walkout is done, according to a First Amendment expert who explained what consequences students can face if they choose to leave school — and the legal troubles schools could face, too. 

A major walkout in schools across the nation is planned for Wednesday, March 14.

The First Amendment gives students the right to engage in political speech, even at school, said Frank LoMonte, director of the University of Florida Brechner Center for Freedom of Information, in an email. However, LoMonte said the First Amendment does not protect students against disciplinary consequences for the non-speech aspects of student conduct.

Students at Kettering Fairmont High School are arranging two walkouts, according to students and administrators who are aware of the planning. One, on Wednesday, will honor the victims in Florida. The other, to be held on April 20, the 19th anniversary of the Columbine High School massacre, will focus on pressuring Congress to protect students.

“We’re protesting Congress’ lack of action to protect students in schools,” said Meigan Karolak, a Fairmont sophomore. “I think when it comes down to it, if we get in trouble, it’s much more important to stand up for something like this than get something like a truancy.”

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Fairmont Principal Tyler Alexander said he is working with students and other administrators to plan how the school will handle the walkouts, but cautioned the district has not yet decided on whether students would face consequences.

Here’s LoMonte’s full explanation in italics:

There is a First Amendment right to engage in political speech, even on school grounds during school time, but that right does not protect you against disciplinary consequences for the non-speech aspects of your conduct. You can picket in favor of a political cause, but if you occupy the superintendent’s office and won’t leave when you’re asked to, then you’re a trespasser and you can be cited for trespassing regardless of how meritorious your political message. There is no “political speech” exception to the rule against truancy. There’s a long history of protesters committing minor infractions, such as trespassing, in the name of making a statement, but when you do that — when you sit-in at the lunch counter or refuse to vacate your seat on the bus — you assume the risk of being arrested.

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Many administrators will use discretion not to impose disciplinary consequences when students are engaged in an especially compelling cause, so just because you have the authority doesn’t mean you’re required to use it. There certainly are times when students will get an excused absence to attend the 4H fair or the scouting jamboree because those are regarded as civically beneficial activities from which you’re getting educational benefit, so you could argue that participating in civic action on a contemporary political issue deserves similar consideration.

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The only time a school could get in legal trouble for imposing disciplinary consequences on student protesters is if the disciplinary authority is used in a selective way. So if the school has a written policy that a student can be excused from school by presenting a written parental note, and the student protester does bring in a parental note, the school has to honor that note on the same terms with any other parental excuse. Many schools already have a range of acceptable reasons for absences with a parental note, so it’s quite possible they’ve already anticipated this, and if the policy says “you may have an excused absence only in the event of personal or family medical issues” then the school is free to discipline students for walking out, even with a parental note.

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