Is walking out of school protected by the First Amendment?

It’s now been nearly a month since Nikolas Cruz opened fire in a Parkland, Fla., high school, killing 17 people and wounding another 15.

For a while, it was just the latest mass shooting in a steady drumbeat of mass shootings. But now students across the country, catalyzed by grief, fear and anger, have organized a plan to walk out of school on Wednesday, March 14 as both a memorial to the dead and a call for action.

The plan has met with tentative approval from some schools and outright disavowal and threats of punishment from others.

But are those students who choose to walk out protected by their First Amendment rights?

First, let’s look at how the walkout is supposed to happen:

According to Women’s March Youth EMPOWER, students will plan to walk out of school at 10 a.m. in every time zone for exactly 17 minutes, the same number of people who were killed in Parkland. The organization is promoting the walkout with the hashtag #ENOUGH.

More than 2,500 such walkouts are planned, according to the organization.

The walkout will be in protest of Congress’ “inaction to do more than tweet thoughts and prayers in response to the gun violence plaguing our schools and neighborhoods,” according to the site.

After those 17 minutes are up, students will return to class.

I’ve heard some schools are threatening to punish students for walking out. Aren’t those students protected by the First Amendment?

The short answer? No ... and yes.

Students absolutely have the right to free speech, and that includes the right to protest and to assemble. But things are a little different with public schools.

Students are required by law to attend school, and when they’re there, schools can determine punishments for absences, tardies and other infractions, the ACLU says.

Walking out of school, even as a form of speech, does not protect students from being punished for doing so.

That said, schools can’t go overboard – and they can’t punish students for what they protest.

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

That statement, made by Justice Abe Fortas in the landmark Supreme Court case Tinker v. Des Moines, has for decades reaffirmed the sanctity of free speech in public schools.

Schools are not allowed to punish speech just because they don’t like it. They can enact reasonable restrictions to control it, but cannot punish speech based on its content. This is called being “viewpoint-neutral.”

This issue has come up several times in the last year. A South Carolina school faced criticism after telling its students they were not allowed to talk about gun control during the planned walkout day, and other schools brushed against First Amendment rights when they threatened to punish students for kneeling during the national anthem.

Students who protest inaction on gun control, or any other issue, cannot be punished more harshly than any other students. In other words, schools can punish students for walking out of school. They cannot punish students for what they’re walking out of school for.

One last thing: Private school is a little different.

The First Amendment does not prevent private institutions (including private schools) from prohibiting certain types of speech on their campuses.

It only protects against government interference with speech – and public schools are part of the government.

Private school students can be prevented from taking part in the walkout and can be punished more severely for speech the school disagrees with.