September 16, 2022
The administration, being that of a public charter school, is liable to be sued if any of the suspensions they give violate the First Amendment.
While protesting or organizing a protest are rights protected by the First Amendment, regulating certain types of student expression is still at the school’s discretion.
They can suppress speech or expression if they deem it interferes with a school’s ability to function, which could include physical harm, captive audience, disruption of school-sponsored activities or class time, threat, and destruction of school property.
When it comes to physical harm, the school addressed that they believe harassment occurred, but only in the context of the “hey hey, ho ho” chant.
“When [policy changes weren’t met with immediate approval] in the past, the community worked together to reach a common goal and never harassed staff members in such a way,” a d.tech administrative statement read.
Because the chant was targeting a position rather than a specific person, it’s too general to be considered threatening if brought to court.
“If the students are saying we want change and then part of the change is a change in personnel, then that’s protected by the First Amendment,” said Mike Hiestand, the president of the Student Press Law Center.
Another thing Hiestand points out that matters in cases of protest and use of profane language at school is whether it disrupts school-sponsored time or has a captive audience.
“Nobody had to be in this protest. If somebody was offended by the use of profanity, they could have left. That’s also something that courts look at: if it’s at a captive audience,” Hiestand said.
The students used profanity in their expression of disagreement with school policy.
“We said ‘F*** d.tech, F*** Yondr, and F*** e-hall pass,'” Victor said.
According to Hiestand, the First Amendment protects this use and setting of profanity.
“If it wasn’t threatening, certainly any students that simply protested the policy, but even those who used profanity are protected [during a not school-sponsored activity,]” Hiestand said.
The protest occurred during lunchtime, a free period, meaning it didn’t disrupt school-sponsored activities.
Despite no physical threat, captive audience, or disruption of class time, certain actions surrounding the protest fell outside the First Amendment’s protection.
“Courts definitely don’t like threats; threatening language, that sort of thing. Even in jest, those are things that can change otherwise protected speech and put it into that protected category,” Heistand said.
The group chat with threatening jokes about the student culture coordinator would give the school complete justification for the suspension of students. Even though it wasn’t part of the protest’s language, it made that person’s speech unprotected.
“Phone use would be a violation of school rules. So I mean, somebody who did that can be held accountable for that,” Hiestand said.
Several students took their phones out of the Yondr pouches with a magnet. Any student that did that could be held accountable with suspension. On top of that, if any student broke a Yondr pouch to get to their phone, that would constitute as the destruction of school property or vandalism.
If a student who didn’t take out their phone or participate in threatening language on the group chat was suspended as a direct consequence of the protest, then the school would be violating First Amendment rights.
“I think if we were coming at the teacher, if we were actually harassing the teacher, then I completely understand where they’re coming from. But nothing was pointed directly to them. They had no physical harm that happened to her. They said they felt unsafe, but nobody was coming towards her whatsoever. It is our First Amendment right to say what we want. They are our teachers, but at the same time, they can’t tell us if we want to protest or not,” Jordan said.
The administration’s response in the following weeks of Aug. 24 to the protest didn’t only affect the protestors; it affected d.tech’s entire community.