KNOW YOUR RIGHTS!
Student Walkouts & Political Speech at School
ACLU of Northern California . 1663 Mission Street, Suite 460.
San Francisco, CA 94103 . Phone 415.621.2493 . Fax 415.255.1478 . www.aclunc.org

Q: What should I do if the school administration threatens to punish any students who participate in an upcoming walkout?
Because the law requires you to attend school, the administration can take corrective action against you for missing school, even if you miss school to participate in a political protest. However, the school cannot punish you for missing school to participate in political protest more harshly than it punishes students for missing school for any other purpose. For example, you might have to serve detention for missing school to attend a protest if detention is the typical punishment for unexcused absences.

Q: Can I be suspended for walking out of school to attend a political protest?
Generally, no. The law is clear that suspension is not an appropriate punishment for unexcused absences. Section 48900(v) of the California Education Code states: “It is the intent of the Legislature that alternatives to suspensions or expulsion be imposed against any pupil who is truant, tardy, or otherwise absent from school activities.” Furthermore, the law is equally clear that, except with certain serious offenses (which do not include unexcused absences), suspension may only be imposed as a punishment of last resort. Section 48900.5 of the Education Code states that “[s]uspension shall be imposed only when other means of correction fail to bring about proper conduct.” Thus, assuming you do not have a history of unexcused absences, your school must take steps to correct your behavior rather than suspend you for walking out of school to attend a protest. For more information, check out “School Discipline: A Guide for Students & Parents,” an ACLU handbook on suspension and expulsion in California public schools.

Q: What does it mean to be “truant”?
Section 48260 of the California Education Code says that a student is a truant only if they are “absent from school without valid excuse three full days in one school year or tardy or absent for more than any 30-minute period during the schoolday without a valid excuse on three occasions in one school year, or any combination thereof.” If this is your first or second unexcused absence or tardy in this school year, you cannot be reported as truant.

Q: How can I be punished for truancy?
If you really are truant (see above), Section 48264.5 of the Education Code specifies how your school can punish you. After any truancy, you may be required to attend makeup classes on a weekend. In addition, after the first offense, a written warning can be put in your school file and given to the
police. If you are truant a second time in the same year, you may be assigned to an afterschool or weekend study program. If you are cited for truancy a third time within that same year, you can be classified as a “habitual truant” and be required to attend a program designed to help you. If you are cited a fourth time, you can be made a ward of the court and you can be required to do community service or attend a program. If you are reported as truant, your parents can also be fined, up to $100 for a first offense. Fines can increase with additional offenses. If you are found away from your home and absent from school without a valid excuse, certain school employees or the police can assume temporary custody of you during school hours. If this happens, they must bring you to your parents or guardian, back to school, or to designated community center for counseling.

Q: What should I do if the school administration threatens to lock or block the school exits to prevent us from walking out of school in protest?
Locking exits to the school can pose serious health and safety concerns for students and staff. In one instance, a local fire department responded to teachers’ complaints about locked exits at a school by insisting that the administration unlock the exits to avoid a fire hazard. If the school administration threatens to lock students in your school to prevent walkouts, students should immediately notify their parents and the district superintendent’s office.

Q: Can I organize a protest at school?

It depends on the specific activities you have planned and when the protest will take place. Remember that your school a can adopt reasonable rules which regulate the “time, place and manner” of exercising your free speech rights. Thus, you cannot organize a protest if it will substantially disrupt the orderly operation of the school or if it will create the immediate danger of causing students to commit an act that is unlawful or in violation of school rules. But you can organize a peaceful, orderly protest at lunch or before or after school, for example. However, the size of the demonstration, as well as other factors, may affect when and where the demonstration may occur. If you are in doubt about whether your plans for a particular protest are permissible, you should check your school district’s written rules around speech regulations. If you still have questions, you should call the ACLU at (415) 621-2488.

Q: Can a student of a public school be suspended or expelled for participating in a walkout?
Public school students can only be suspended or expelled for committing specific offenses set forth in the Education Code. Education Code Section 48900 sets forth the grounds upon which a student may be suspended or expelled. These include a student’s commission of specified offenses such as
using force against another person, possessing weapons, or damaging school property. Education Code Section 48900(k) provides that students may be expelled or suspended for having “[d]isrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties.” This section might be used by school authorities to try to suspend or expel a student for engaging in a student walkout. However, other provisions of the Education Code limit the authority of a public school to suspend or expel a student for walking out of class. Education Code Section 48900(u) provides: “It is the intent of the Legislature that alternatives to suspensions or expulsion be imposed against any pupil who is truant, tardy, or otherwise absent from school activities.” Therefore, the California Legislature has plainly said that other means of discipline must be used when students are absent from school. (Other means of discipline might include detention or community service on school grounds.) This language should prevent all expulsions and suspensions. Nevertheless, since many school walkouts occur in direct defiance of directives from teachers, principals, or other administrators, school officials might argue that discipline is not being imposed for an absence from school, but rather for defying the valid authority of school personnel. This argument would directly contradict the plain working of Section 48900(u) that alternatives to suspensions and explusion “be imposed against any pupil who is truant, tardy, or otherwise absence from school activities.” If school officials took this position, other provisions of the California Education Code also would bar suspensions and expulsions for most students. Suspensions of student walkout participants would be barred by Education Code Section 48900.5, which provides: “Suspension shall be imposed only when other means of correction fail to bring about proper conduct.” Moreover, this section futher provides that for a suspension arising from a violation of Education Code Section 48900(k), the principal must determine that “the pupil’s presence causes a danger to persons or property or threatens to disrupt the instructional process.” In connection with a student walkout, no reasonable argument can be made that a student’s presence at school “causes a danger to persons or property.” Likewise, although the student leaving might disrupt the instructional process, the student wanting to return to school would not disrupt the instructional process and should not be the basis for a suspension. However, this section might successfully be used to suspend student organizers of the walkout who were distributing flyers and refused to stop such activity, since their continued presence on campus arguably “threatens to disrupt the instructional process.” Distributing flyers at school that urge students to violate school regulations would not likely be found by a court to be protected by the First Amendment. Expulsions for student walkout participants are barred by Education Code Section 48915(e) unless one of the following findings is made (1) that other means of correction are not feasible or have repeatedly failed to bring about proper conduct, or
(2) that due to the nature of the violation, the presence of the pupil causes a continuing danger to the physical safety of the pupil or others. It is unlikely that such findings could be reasonably made, either for a participant or one of the organizers. However, repeated participation in walkouts might satisfy the first finding should a court conclude that suspensions and expulsion are not barred altogether as discussed above. Keep in mind that the law will not stop a principal from unlawfully suspending students. Suspensions can be immediately imposed for up to five days with nothing more than an informal conference. Moreover, under Education Code Section 48910, a teacher may suspend a student from her or his class for the day of the suspension and the day following for any act in violation of Education Code Section 48900. Additionally, the law will not protect you from adverse consequences such as a lower grade if you miss an exam because of the walkout.

READ MORE:

STUDENT RIGHTS
STUDENT WALKOUTS

This information is current for California as of April 2006, and may be changed by the courts, Legislature or Congress. Additional local ordinances or policies may also apply. For specific questions, please contact the ACLU Complaint Counselors at 415-621-2488, or a lawyer. High school youth activists – get involved in our youth program at www.aclunc.org/youth