No-Protest-Speech Policy at K-12 Schools

From Hatcher v. Desoto County School Dist. Bd. of Ed. (M.D. Fla. Apr. 5, 2013):

Plaintiff [Amber Hatcher] seeks to organize and participate in the National Day of Silence at her high school in an effort to bring attention to the harms associated with bullying and harassment directed at lesbian, gay, bisexual and transgender students…. Plaintiff asserts that school officials interfered with her First Amendment right to do so last year, and have asserted again this year that plaintiff will not be allowed to participate as she proposes….

While there are factual disputes as to what plaintiff requested last year, it is undisputed that the Desoto County High School Principal refused to allow plaintiff to engage in any of her requested activities relating to that year’s National Day of Silence. At least some of these proposed activities were well within the written policy of the School Board, and some required no approval by any school official, e.g., remaining silent outside of class, communicating in writing or by dry erase board outside of class, non-vulgar conversations about the upcoming National Day of Silence.

Plaintiff has also satisfactorily established, based upon the emails of the defendants, that there is an established unwritten policy or practice absolutely banning all “protest” speech at the Desoto County schools that is contrary to the School Board’s written policy and the First Amendment. The Superintendent of the School Board instructed the Principal to inform plaintiff that “[i]t is inconsistent with the district’s past practice to approve student protests on any of our campuses. The attached [request from plaintiff] is disapproved.” The Superintendent also told the Principal that he “did not refer to a specific policy. Since this is classified as a protest, as evidenced by the submitted documents, I will not approve the activity on our campuses. This past practice position needs to be discussed with Miss Hatcher on April 13, 2012.” The Principal reported back to the Superintendent that she had “addressed the issue” with plaintiff, had told her several times she could not participate in the activities, and had told her “what the ramifications would be if the protest occurred.” The Principal sent an email to all teachers on the day of the proposed activities stating that a group of students “have an intention of protesting. The district has an absolute policy against protesting on school campuses.” The Principal stated that the Dean or Administration should be notified if students “are wearing placard in protest of an issue” or disrupting the hallways or classrooms, which included refusal to participate in class by taking part in a silent protest.

Of course, as the court held, any blanket “no-protest-speech” policy is clearly contrary to Supreme Court precedent. Disrupting school can be prohibited, and refusing to participate in class can be prohibited. But the policy — as found by the court — goes far beyond that, and covers even attempts to organize nondisruptive political expression. (Hatcher states that the Day of Silence would have involved “not speaking for the day at school except when called upon in class,” and thus wouldn’t have involved refusal to participate in class.) And Hatcher’s behavior the previous year, which led to her being pulled out of class, was apparently nondisruptive: “Plaintiff wore a non-vulgar t-shirt and remained silent at school. There were no incidents until after plaintiff was removed from her third period class. Her third period teacher has filed an Affidavit stating he did not call on plaintiff during class, and reported no change or disruption in his teaching of the class.”

The court ultimately declined to grant the preliminary injunction, but only because of the school’s assurances that the school would be following the written policy, which allows nondisruptive protest speech, and not the unwritten policy, which had been used to ban it. The court also allowed the student’s damages claim to go forward.

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