David Shaw presents “Student Activism: The Past Meets the Present” at New York State School Boards Association’s 2018 Summer Law Conference.
Student activism surrounding recent school shootings throughout our country has given rise to protest activities that have affected many public school districts in the Hudson Valley Region and may repeat on an event basis or perhaps annually in remembrance of fallen students and staff members. Student speech rights, whether through the spoken word, worn symbols, or symbolic gestures, have been recognized over the past 75 years, beginning in 1943 with a Supreme Court decision affirming the rights of students not to stand for the pledge of allegiance to the American flag. Student protests touched upon the core of American politics during the Vietnam War in the 1960s and 1970s. The current student protest movement carries with it the heighted emotions that are attendant to an ever-present fear of death in a particular environment (e.g., a soldier in a war zone or a student in a school building).
The regulation of unauthorized protests through potential disciplinary sanctions is a matter facing school boards today as they grapple with walkouts that occur during the student instructional day. Leniency in the disciplinary response this past spring must be reconciled with how future incidents may be addressed by school administrations. First Amendment concerns about disparate treatment of protestors based upon the message of the protest must be considered in disciplinary decision making. The cases that follow inform the boundaries between protected student speech and that which may subject protesters to discipline.