By Sal Holguin, Partner
and Geneva Englebrecht, Associate
Cerritos Office
Media Coverage of the Occupy Wall Street demonstrations is widespread. The protest has spanned the country and has included demonstrations in California cities such as San Francisco, Los Angeles, Ventura, Anaheim, and Temecula. At the same time the campaigns for local, state and national elections are starting to build momentum. Whether these protests and campaigns will infiltrate the school setting is unclear, however, school districts must be prepared to meet their legal obligation to provide a safe and supportive learning environment by mitigating any detrimental effect that protest, picketing, or student walk-outs may have on the school setting.
While school districts must be sensitive to their students’ broad legal right to free expression, they must also bear in mind their legal obligation to prevent the disruption of school activities, the shared responsibilities between schools and parents in ensuring the compulsory attendance, and the safety of their student. School district’s must also be mindful of the types of discipline that can be imposed on demonstrating students. With this in mind, we offer the following advice regarding notices to parents and addressing potential adult involvement in the student activism.
PROVIDE NOTICE TO PARENTS AND STUDENTS
School districts may wish to consider providing a notice to parents advising them of the compulsory attendance requirements, school district’s limited liability, and potential for student disciplinary action. Parents who are informed of the potential disciplinary and legal consequences may influence their children not to leave their classes or engage in disruptive behaviors.
Compulsory Education Requirements
Many parents and guardians are unaware of their legal obligation to ensure that their children attend school each day or that violation of the compulsory education law can give rise to criminal prosecution of parents. When parents are informed they may be more inclined to discuss the consequences with their children.
District’s Have Limited Liability
The California Education Code limits a school district’s liability and responsibility over the conduct and safety of any student at any time when the student is not on school property, unless the district has undertaken to provide transportation for the student, has sponsored an activity off school premises, has otherwise specifically assumed such responsibility or liability, or has failed to exercise reasonable care under the circumstances. Parents and student should be made aware that the District may be absolved of liability for the safety of and supervision of students who walk-out or leave school campus to participate in protest.
Student Discipline
A school district has a responsibility to provide a school environment that is safe and supportive of learning. While students may have a right to free speech and assembly, it has been well established that students in public schools do not have the same free speech or rights to assembly as adults in other settings. School district’s may legally restrict student speech or assembly as they are related to student protests or walk-outs where the speech or assembly interrupts classes or substantially interferes with the opportunity of other students to obtain an education. Potential areas of discipline may arise from unexcused absences, truancies, disruption of school activities, profanity, and other violations of school rules or district policies. It is important that school staff utilize appropriate disciplinary responses to the specific rule or code violation rather than disciplining a student for participation in a protest or demonstration.
INSTIGATING ADULTS
There are numerous Education Code provisions that are relevant to adults who disrupt the public school environment. Additionally, the California Penal Code criminalizes the disruption of school campus by adults and actions that contribute to the delinquency of a minor, which can include persuading a student to violate compensatory attendance laws. School districts may wish to consult with legal counsel to determine whether a personal letter to the individual and/or organization or publish an open letter indicating that it has come to the school district attention that the individual and/or organization is encouraging students to either not report to school or walk-out to engage in protest and that such activity exposed the student to dangers, risks, discipline, and criminal prosecution. The school district may wish to include notice that the school district assumes no liability for harm that comes to students who violate school district policy by leaving campus and as organizer, the responsibility for student safety, and any and all ensuing legal liability for harm that may arise from the protest may fall on the individual or organization personally.
Determining how to proceed when student speech rights and a school district’s obligation to provide a safe and secure environment intersect will require a close examination of the specific facts as applied to the relevant laws. Given the complexity of the issues, districts may wish to consider the involvement of counsel to ensure that all legal issues are addressed.
