The reaction to the tragedy in Parkland, Florida, has been a nationwide focal point for several weeks now. In many ways it has been the strongest response to such an event that we have ever seen. It will likely prompt discussions and possibly changes in state and federal laws, and just as importantly, boards and administrators will have no choice but to address local challenges and situations. We wanted to share our responses to the most frequent questions we’ve been fielding on this issue over the last several weeks.
Threats of School Shootings at your School
Nebraska’s terroristic threats law prohibits any person from:
“threatening to commit a crime of violence” with the intent to terrorize another or cause the evacuation of building, place of assembly, or facility of public transportation. More importantly, the law also prohibits making such a threat with a “reckless disregard of the risk of causing such terror or evacuation.”
Neb. Rev. Stat. §28-311.01.
That means that it is not a legal defense for students to say they were just joking or that the threats were not serious.
Unfortunately, Nebraska schools have faced dozens of these threats since the Parkland shooting. As we tell students and parents all the time, administrators have an obligation to report these as crimes regardless of whether the administrators believe the threat is serious. We encourage all schools to communicate with students and parents that any threat will be reported to law enforcement and will lead to disciplinary consequences.
We are also urging school administrators to quickly communicate with your community when these threats are received. Social media means that stories about alleged threats spread immediately -- and the threats are often magnified in the retelling. We think it is prudent to tell families immediately when there is any threat and to assure them that law enforcement has investigated and that there is no imminent threat to students.
Student Walkouts and Protests
The ACLU, NSEA, and many others have published “guidance” to students, parents, and school employees relating to their roles, rights, and obligations as various walkouts and protests are planned across the country. Many have been planned, including proposed activities on March 14 and 24, April 20, and many others. These are the key legal issues to consider as your district plans for these events.
First Amendment Standards. In general, things like walkouts and protests are governed by the Tinker standard, which permits school administrators to impose disciplinary consequences for student conduct and speech which causes a “material and substantial” disruption or could be “reasonably led to forecast” such disruption. The most obvious scenario would be students walking out in protest in the middle of class or at another designated time when they are otherwise expected to remain in the building. There is no doubt that a staged walkout during such times would cause a disruption of the school day, thus making them subject to disruption and discipline. Walkouts and protests which occur outside of school and activity time but on school grounds would be subject to the same disruption standard and also any “time, place, and manner” restrictions you enforce for others who wish to assemble on school grounds.
Student Discipline Act. Even if the First Amendment would not prohibit imposing consequences for student speech and activities, the Nebraska Student Discipline Act may. Administrators, as you work through these issues remember that long-term suspensions, expulsions, and mandatory reassignments are only available to conduct which occurs on school grounds, in a school vehicle, or at a school activity. Student conduct outside of school, such as social media posts, is still subject to the Tinker disruption standards, but your potential consequences are less severe. Such conduct or speech could still be subject to a short-term suspension, activity suspension, in-school suspension, detention, etc.
We’ll discuss your options to address these situations below, but it’s worth pointing out an often forgotten phrase in the Act:
"it is the intent of the Legislature that alternatives to suspension or expulsion be imposed against a student who is truant, tardy, or otherwise absent from required school activities."
Neb. Rev. Stat. §79-267.
Options to Consider for Addressing Protests and Walkouts. While this list is not exhaustive, we believe these are the most common proposals we’ve heard for addressing these events:
Prohibit walkouts and protests which cause disruption and/or may be unsafe. Students will undoubtedly push back and express frustration about this type of decision, but done properly it is lawful.
Permit students to participate only upon written authorization of parents. Much like the eclipse earlier this year, we worry about keeping track of dozens or hundreds of students on a case-by-case basis. Such a system could actually create more liability risk than it prevents.
Permit students to participate, but allow parents to “opt out” their students from participating. The benefit here is that only students whose parents refuse to allow them to participate must be tracked. You could also provide the option for parents who do not want their students to participate to keep their kids home on an “excused” absence.
Permit students to participate if they first attend a discussion group on the issues. While many students are serious in their conviction about these issues, for others the idea of leaving class is more of a novelty than a protest. Students who are serious about the protest or walkout will make it a priority, but students cannot be excluded from participating based on their particular viewpoint.
Encourage the activity, take ownership of it, and use it as a teachable moment. If you surround the protest with supervision and civic-oriented discussions, it may help avoid misconduct and keep the focus on the issues rather than just a chance to miss class. Some schools are considering allowing the protest to occur in the commons area or the gym to ensure it remains safe.
Plan Carefully and Consider Safety Issues. Obviously this list is not exhaustive, but it does present many of the most common approaches we have heard. While we believe each approach can be structured lawfully, the key is providing advance notice of the district’s plan. For example, making the directives clear allows administrators to respond appropriately when they are not followed.
You should also discuss your plan with your school attorney and local law enforcement. We have already begun hearing threats against the protesting students. We’re not sure how smart it is to protest gun violence in broad daylight in the middle of an open space. If you do intend to allow the protests to occur outdoors on school grounds, you should involve your school safety, security, and/or crisis teams early to address the situation within your existing safety plans and practices.
Staff Speech Issues
School staff member conduct, including participation in protests, walkouts, and engaging in speech at school or on social media, is also protected by the First Amendment in certain circumstances. When school employees are speaking as “private citizens” on “matters of public concern,” their speech and conduct are protected so long as the employee’s rights outweigh the school district’s legitimate operating interests, like directing staff, integrity of district programs, relations with the staff and community, etc. If an employee can prove the first two things--that they are speaking as private citizens on matters of public concern--then the balancing test kicks in. So, outside of a few circumstances, this is a case-by-case analysis.
There are a few bright line rules. When a public employee is speaking pursuant to their official duties, they are speaking as employees and not private citizens. For example, a teacher is speaking as a teacher when they are speaking during expected duty time. We believe this prohibits them from walking out with students in protest without permission, for example. Similarly, when they are discussing only items of personal interest and not “matters of public concern,” their speech is entitled to less protection.
For issues related to gun violence, protecting students, and other things in the national spotlight in the wake of Parkland, there is a very good chance a court would view them as matters “of public concern.” However, employees must still be speaking as “private citizens,” and their speech must be balanced against the district’s interests in the items mentioned above.
These issues present a variety of legal considerations, but with careful planning and preparation, we believe schools can address them in a lawful and thoughtful manner. If you have questions about your district’s approach as you work through the issues, you should contact Karen, Steve, Bobby, or Tim or your school attorney.