Superintendent Elsie Arntzen
Montana Office of Public Instruction

Superintendents of Schools
Montana School Boards Association

Re: Upcoming student protests against campus gun violence

Dear Superintendent Arntzen, Montana School Administrators, Educators and Officials:

In the wake of the tragic school shooting in Parkland, Florida, a powerful and important student movement has emerged which presents your offices with a unique opportunity to embrace and foster civic engagement.  The ACLU of Montana asks you to support student efforts to engage in the issues of the day and encourage a spirit of civic participation in the various forms it may take.

We know that nationwide events protesting gun violence in schools are expected to occur on March 14, 2018. We recognize that you and your colleagues across the State are actively working to develop legal and operational responses to the possibility of student walkouts and other expressive activities in schools. We encourage you to celebrate, not squelch, these courageous students as they exercise their First Amendment rights.

Montana Schools Cannot Ignore First Amendment Requirements:

Constitutional principles must guide school administrators in deciding appropriate actions for students participating in First Amendment protected activities. As you know, public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). In Montana and across the country, courts have recognized that “wide exposure to ... robust exchange of ideas is an important part of the educational process and should be nurtured.”  Dorn v. Board of Trustees of Billings School Dist. No. 2 (1983), 203 Mont. 136, 661 P.2d 426 (citing Tinker).

School officials may only prohibit student speech (which the threats to impose discipline have the effect of doing) when they reasonably forecast that the student expression “will substantially interfere with the work of the school or impinge upon the rights of other students.” Tinker, 393 U.S. at 509. It is not enough that school officials have an “undifferentiated fear or apprehension” of a disturbance. Id. at 508. Rather, there must be “substantial facts which reasonably support a forecast of likely disruption.” Quarterman v. Byrd, 453 F.2d 54, 58 (4th Cir. 1971).

It is unlikely that a seventeen-minute peaceful protest during school hours could or would cause the kind of “material and substantial disruption” necessary to justify disciplinary action or take the students’ conduct outside the bounds of their protected First Amendment rights. This is particularly true given that some schools already have demonstrated that a student walkout can be a teachable moment and an opportunity to reinforce a positive message about community and civic engagement. In addition, because schools may not make distinctions based on the content of a student’s speech or expressive activity in imposing discipline, any discipline for an “unexcused” absence imposed on a student participating in an out-of-class, on-campus protest or an off-campus protest related to “school gun violence” must be consistent with and no more severe than discipline imposed for other “unexcused” absences.

The ACLU of Montana may intervene if a student who leaves school as an act of political protest faces more severe punishment than a classmate would for, say, ditching class to meet friends at a coffee shop.  We have encouraged any student (or anyone who knows a student) who is disciplined for engaging in a peaceful demonstration related to school gun violence to fill out our online intake form so that our legal team can determine if additional action is warranted.

Montana Schools Should Promote, Not Discourage, the Free Exchange of Ideas and Opinions:

Montana public schools and school divisions would be well-advised, under all the circumstances, to adopt an educational rather than a disciplinary approach to these activities. Just because you can argue that you have the power to discipline students for protesting or walking out doesn’t mean you should choose to do so. “That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to discount important principles of our government as mere platitudes.” West Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624, 637 (1943).

Students taking a stand to call for the change they seek is not new. High school students have been a driving force behind social justice movements for decades, to historic ends in the Civil Rights Movement and in ending the Vietnam War, to name just two. It takes courage for students to stand up for their beliefs, because so often it involves taking risks. Administrators are uniquely positioned to nurture a sense of social action in students by removing some of the barriers to participation.

Thank you for working positively to encourage civic engagement and protect freedom of expression in your schools. This tragedy has fueled a national conversation about school safety and we should certainly applaud, listen to, and learn from students as they demand change. If you would like to discuss any aspect of this, please do not hesitate to contact me.

Caitlin Borgmann
Executive Director
ACLU of Montana