Responding to Student Walkouts Protesting School Gun Violence
– OEA ADVISORY –
From Richard Wilkinson, OEA General Counsel
Since the recent school shooting in Parkland, Fla., students across the country have launched an inspired movement to demand action on improving school safety and preventing school violence. NEA, its state affiliates and members throughout the nation support these calls to prevent further school violence.
Questions have arisen about what educators can and cannot do to support the emerging student movement. This advisory (modified from a similar NEA Advisory) addresses those questions.
1. What can educators legally do to support their students’ demand for safe schools?
Educators can engage in off-the-clock political and community action to advocate for policies that will make our schools safer. Educators can, among other things, march, sign petitions, write letters, post statements of support on social media and call and lobby their local, state and federal legislative officials. Educators can attend parent and community meetings and participate in advocacy and other groups for specific issues during off-the-clock hours just like any other private citizen.
When educators act as private citizens speaking about matters of public concern – such as school safety – they are protected by the First Amendment as long as their activities do not disrupt the workplace. Educators should therefore avoid raising specific workplace complaints about administrators, coworkers or – especially – students. Educators should also avoid complaints about specific policies (or the lack thereof) adopted by their local board of education. Those are not considered matters of public concern and are not protected speech.
Educators should avoid any suggestion that they are speaking in their official capacity or on behalf of their local school district. Speech relating to tasks within an educator’s uncontested employment responsibilities is not protected from regulation and should be avoided. When the speech concerns a matter that is within the type of activities that the educator is paid to perform, the speech is deemed made pursuant to official duties (even if made off-the-clock) and subject to regulation by the employer.
Remember that speech is protected by the First Amendment only when speaking as a private citizen about a matter of public concern and when the speech does not disrupt the workplace.
Educators may wish to discuss school safety and gun violence issues with their students. As with the First Amendment, there is, unfortunately, no one-size-fits-all guidance available. Such discussions should be consistent with local school district guidelines or policies applicable to these issues. Educators are more likely to be protected when such discussions are both age appropriate and instructionally relevant. Even then, given that school safety and gun control issues may be considered “controversial,” educators should refer to local school district policies and any collective bargaining agreements, which may provide for academic freedom protections or protections to discuss controversial subject matters. Remember the “work then grieve” adage if faced with what may be perceived as an unfair restraint on your classroom discussions.
2. What can educators do to prepare for student walkouts?
Educators and local affiliates should engage with local school districts to encourage the adoption of plans about how to respond to student walkouts before the walkouts happen. Such plans should address educators’ duties and responsibilities during student walkouts. Plans can also facilitate student protest activity in a safe and educational manner by, for example, providing time and space for student demonstrations, guaranteeing that neither students nor educators will be penalized for participating in a walkout.
3. Do educators have the legal right to engage in walkouts or other work stoppages to support their students?
No, unless the school district or school administration has authorized the walkout. Unauthorized educator walkouts or other work stoppages aimed at protesting a lack of governmental response to gun violence in schools are not protected activities under either the First Amendment or state and local collective bargaining laws and agreements. Such actions may violate state laws and school district policies and could subject educators to discipline and even termination.
Local affiliates should be particularly careful in endorsing or supporting educator walkouts. Such actions could subject the locals themselves to legal liability and could jeopardize their status as a local bargaining agent with exclusive representative status.
4. Can educators legally help students organize walkouts? Can educators legally participate in student-led walkouts?
No, unless the school district or school administration has authorized the walkout. As a general matter, educators should not lead or assist in the organizing of walkouts. Leading or assisting such walkouts can lead to the same sort of discipline and legal liabilities that can arise by leading or participating in the walkouts.
5. What should educators do if or when their students walkout?
If students do walkout, educators can be put in a difficult spot. On the one hand, educators are not legally protected if they participate in the walkout, but on the other hand, educators may be uncomfortable with some or all of their students leaving class unsupervised. This dilemma illustrates the reason why school districts should develop clear protocols about how student walkouts should be handled before they occur.
If the school district lacks such policies or protocols and students walkout, the educator should immediately inform an administrator and seek guidance as to how the walkout should be handled. What students should be supervised, how they should be supervised, and who should supervise them should be immediately discussed with the administration so that student safety is ensured during the student activity.
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