Legal advice about student walkouts

The events of Feb. 14 have once again highlighted gun violence in our schools and reignited the debate about the best course of action to remedy the problem. This time, however, it has also sparked a groundswell of student activism.

A number of student walkouts have been scheduled to advocate for gun reform and/or safe schools. OSEA members inherently support the students they serve; that is who we are. So we asked our legal adviser, Mike Tedesco, to what extent our members can be involved in these walkouts.

The following questions and answers were prepared by the Tedesco Law Group. They are intended to explain what rights OSEA members have as an employee as well as the best practices regarding student-led protests that involve walking out of class.

OSEA does not intend to dictate how members should respond to the walkouts. We are simply providing information to help members make an informed decision. Members should contact either their field representative or the State Office if they have questions.

Student Walkout Questions and Answers

1. Do educational employees have the legal right to engage in walkouts or other work stoppages to support students?

No, unless the school administration has authorized the walkout. Educational employees should be aware they face potential discipline if they choose to participate in, help students organize or encourage student walkouts, and they face potential termination for taking part in a walkout, especially if they have been specifically directed not to do so. Educational employees have little if any First Amendment protection in this situation. Be mindful that even off-duty encouragement of student walkouts should be avoided. If educational employees are interested in participating in some other manner on days of action, they should work with OSEA and their local school districts to find educational and meaningful ways to do so.

2. What may educational employees legally do to support students’ demands for safe schools?

While educational employees have limited rights when it comes to participating in or encouraging student walkouts, there are other ways to show support.

Educational employees can engage in off-the-clock action to support efforts to make schools safer. Among other things, educational employees may:

  • walk in marches;
  • sign petitions;
  • write letters;
  • post statements of support on social media; and
  • call and lobby their state, federal and local legislators.

When educational employees act as private citizens speaking about matters of public concern, like school safety, they are protected by the First Amendment so long as their activities do not disrupt the workplace. Educational employees should therefore avoid raising specific workplace complaints about administrators, coworkers or — especially — students. They should also avoid any suggestion that they are speaking in their official capacity or on behalf of the school or district.

3. How should an educational employee respond to student requests for their personal position regarding gun control (or related matters) and is it OK to discuss school safety and gun violence with students?

If an educational employee does reveal their beliefs, the educational employee should clarify they are giving a personal opinion/belief and follow the guidance outlined above. The employee should be ready to — in an age- and context-appropriate manner — respond to questions, criticism and potentially difficult conversations. General statements similar to the following would likely not be deemed inappropriate: “In my personal opinion, everyone has the right to safe schools, and I believe we need to make this a top priority.” Unfortunately, there is no one-size-fits-all guidance here. Such discussions should be consistent with district guidelines. Educational employees are more likely to be protected when they have “just cause” protections in a collective bargaining agreement. However, even then, and given that school safety and gun control issues may be considered controversial, educational employees should refer to district policies on these issues.

Another option is to deflect the question with responses like, “I keep my opinions private.”

It is also worth noting some districts might direct employees to not reveal to students their personal opinions regarding gun control or related issues. While such a directive might violate an employee’s rights in certain circumstances, the safest course of action is to follow the directive and later contest the district’s directive through the grievance process or some other avenue.

4. What should educational employees do if or when their students walk out?

If students do walkout, educational employees can be put in a difficult spot. On one hand, educational employees are not legally protected if they participate in the walkout, but on the other hand, employees may be uncomfortable with students leaving class unsupervised. This is why school districts should develop clear protocols about how student walkouts should be handled before students walk out.

If the school district lacks such protocols, and an educational employee’s student(s) walk out, the employee should immediately inform administration and seek guidance as to how the walkout should be handled by the employee.

5. Things to keep in mind

  • DO be mindful of the fact students, parents, guardians, administrators and coworkers may have strong opinions regarding the subject of the walkout. Many people may be on edge when it comes to the issue of a walkout. Some may fear talking about the issue, while others may be eager to engage. Some may be strongly in favor of the walkout and others may be strongly opposed. Please be conscious of this.
  • DO NOT, while acting in your official capacity, disparage or demean anyone for their political beliefs, opinions regarding the subject of the walkout or their feelings about the walkout. When off duty, be careful in communications with anyone connected to your employment (students, parents, staff, etc.). This includes communication on social media sites. These communications may be subject to scrutiny by your employer and your First Amendment rights may be limited.
  • DO try to avoid the perception you are pushing your own beliefs while at work. Avoid conversations aimed at (or could be perceived as) trying to switch a student’s political or walkout-related beliefs to reflect your own.
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