High School Protest Rights

High School Protest Rights (and some other topics)
by Susan Basko, Esq.

High School students in the U.S. have the right to protest, just like adults do, but not during school time and not on school grounds.  During school time and on school grounds, high school students are required to follow the school and district rules.  After school and off school grounds, you are free to do whatever is legal, just like anyone else.  You can run a protest or attend a protest after school or on the weekend, just like anyone else.

Public vs Private Schools. These laws apply to students at public schools.  Students at private schools or religious schools may be agreeing to a set of rules or a Code of Conduct that directs what a student may do, even in their free time or off campus.  What is a "private school"?  That is a school that is run by a private foundation, by a church or religion, or by a private company. "Charter schools" are privately run, but are paid for by public school money, so this is a grey area.  In general, a charter school can reject a student who breaks their rules.  

Religious high schools, colleges, and universities very often prohibit students from supporting or promoting beliefs that run contrary to the religion.  Students agree to adhere to the rules in order to be allowed to attend the school.  Topics such as abortion, sexual orientation, marriage rights, promotion of legalization of marijuana or drugs -- may be off-limits for students attending some religious schools. Some religious schools go much further than this in their restriction of students' personal activities.  If you are a high school student, your parents are legally allowed/ required to decide what school you attend.  When you are 18 and over and attending college, you should find out the school's beliefs and policies and restrictions before choosing the school.  If your beliefs differ from those of the school and if you are going to have to refrain from voicing your beliefs, the school may not be a good fit for you.  If you attend a private or religious high school or college, you are agreeing to abide by whatever rules or restrictions the school has, and you can be punished or expelled from the school for not following their rules and you generally will have no legal recourse, unless the school itself is doing something illegal, such as physical or sexual abuse.  If that is the case, you have to make a police report.

Law vs Private or Religious School Rules.  Let's be careful to make the distinction between what is legal or illegal versus what is against the rules of a school.  If a student attends a private or religious school that prohibits a student from participating in a protest that is legal, then the student may be in violation of the school rules, but is not breaking any law.  The student might be punished or expelled by the private or religious school, but will not be in any criminal trouble with the law. For example, if you attend a religious college that says you cannot support the right to abortion, and if you do support the right to abortion, then you are violating the rules of the religious college you have chosen to attend, but you are not violating any law.  You can be punished or expelled by your college, but you will not be breaking any law.  


How do you know what your school rules are?  You can look on your school's website and on the school district website to find their rules.  It will be called a "Code of Conduct," a "Student Handbook," a "Discipline Policy," "School Rules," or some such thing.  If this is not online on your school's website, you may have to ask in person for a paper version of it.

Let's look at this in detail.

Punishment: The general legal rule is that a public school cannot punish a student more harshly for an act that is done as a protest than it would for the same act done for another reason.  For example, if an unexcused absence gets a specific punishment, then an unexcused absence for a protest should get the same punishment.  

What is "school time"?  School time is when you are on the school grounds, in school, at a school-sponsored activity or sport, on a school trip, bus rides, hotel stays or home stays while on a school trip, etc.  Also included in school time would be any school camp, summer program, trip abroad, semester abroad, exchange program, etc.  Also included are school dances, proms, graduations and other ceremonies, musical, dance, and theater rehearsals and performances, art shows, school fundraisers, etc.  Basically, any activity connected to school, whether you are on or off the campus, is considered school time where the students are subject to school rules.

What are "school grounds"? That is in the school buildings, on the surrounding grounds, on any other associated buildings or grounds.  This usually includes parking lots, walkways, sports fields, etc. The grey area is the public sidewalk that surrounds the edge of the school, as well as bus stops or bus loading areas that may be on that public walk.  If you plan to use that public walk to pass out flyers, or hold a walk-out, march, or protest, try to find out if the school claims it as part of their grounds.  

School Cops or School Resource Officers:  These are usually sworn police officers whose duty is to be within a school.  They have police power and are allowed to tell students to do something or stop doing something, within the limits of the law.  They also have arrest power.  If there is any abuse of the power or physical or verbal abuse, the students and / or parents should report it to the school, the district, and to the police.

Putting up Posters: Most schools require a student to submit a poster for approval before it can be hung on a bulletin board.  Approval is usually based on if the poster is for a school-sponsored event and if the poster is in good taste.  Don't be surprised if your poster for a protest is rejected or removed off a bulletin board.  Some schools, particularly colleges but also some more liberal high schools, will have the official bulletin boards and in addition, will also have a bulletin board where almost anything can be posted.  You may want to push for your school to have such a bulletin board.  It is always illegal to put up a poster that advocates for anything illegal, and putting up a poster that includes hate speech or that advocates violence will be against school rules and will usually be illegal, too.

Passing Out Flyers:  High school students supposedly have a First Amendment right to pass out flyers.  However, many high schools have rules against even bringing flyers to school, let alone passing them out.  High schools might also have rules against standing in a hall or at an entry way passing out flyers.  This used to be a huge deal before the days of the internet.  Now, it may be just as effective to announce your protest using social media.  If you want to pass out flyers, you are best off to do this on the public sidewalk that is adjacent to the street.  That sidewalk is least likely to be considered school property and least likely to be considered subject to school rules.  No matter where you are passing out flyers, it is illegal to pass out flyers that advocate anything illegal.  

"Speech" in Clothing:  Most public high schools do not have a school uniform, but do have a dress code.  Some dress codes may prohibit wearing any clothing that has words or a message on it. If wearing clothing with a message on it is allowed, then wearing a political message is allowed, if it meets other requirements. 

The following are the "Do Not" rules from the Portland, Oregon Public Schools Dress Code.  These are typical of a non-restrictive public school district's dress code, with the exception that most school districts expressly prohibit a student from wearing any gang identifiers of any kind, including gang insignia, colors, styles, or pictures associated with a gang.  Portland is sliding down the slippery slope by leaving it open as a possibility for a student to wear gang identifiers.  What criteria are used to determine if a student wearing gang identifiers endangers the safety of other students or staff?  And doesn't marking oneself as a gang member always endanger the safety of the person wearing the gang identifier?  The school dress code rules in Portland, Oregon, include these "do nots":
Non-Allowable Dress & Grooming
  • Clothing may not depict, advertise or advocate the use of alcohol, tobacco, marijuana or other controlled substances.
  • Clothing may not depict pornography, nudity or sexual acts.
  • Clothing may not use or depict hate speech targeting groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation or any other protected groups.
  • Clothing, including gang identifiers, must not threaten the health or safety of any other student or staff.
  • If the student’s attire or grooming threatens the health or safety of any other person, then discipline for dress or grooming violations should be consistent with discipline policies for similar violations.
Walk-Outs:  School walk-outs are generally breaking school rules and are considered an unexcused absence.  Some school walk-outs are tolerated by some school administrations.  It depends on the walk-out and on the administration.  See the section above about "Punishment," and read this post about school walk-outs being elitist.  At one recent national school walk-out against school shootings, many schools allowed students to run a rally or ceremony on school grounds.  This was wise, since it kept students safe and on the school grounds, and also limited the time they were out of class to about one class period.  If students want to walk out and if the school is too strict, this can cause the students to have to walk away off the school grounds, which can possibly endanger them.  If you are a high school student planning a school walk-out at your school, you may wish to enlist the support of parents or teachers who might be able to help get the walk-out sanctioned.  If you are a high school student and if you participate in a walk-out that is not sanctioned by the school, then you will be subject to punishment, but the punishment is not supposed to be any more than if you left school for any other reason.  That will be determined by a number of factors, including the discipline policy at your school, how your school wishes to interpret that policy, and how it wants to interpret your actions.  

Protest Planning: Yes, a high school student can plan a protest!  A high school student can participate in a protest!  Your safest bet is to plan a protest for after school time or on a weekend, and off school grounds.  Here is a guide to quick protest planning.

Protest Writing and Posting Online:  High school students may legally write their political opinions and post them online.  However, a high school student can get in trouble at school or with the police for posting hate speech, sexual harassment, personal harassment, or by posting about violence or violent plans.  A student will also get in trouble at school and with the police for posting pictures or videos that include hate speech or hate ideas, sexual harassment, personal harassment, violence, violent plans, or that show the student or others with guns, other weapons, drugs, or in sexual situations.  Hate speech is speech that targets others based on race, national origin, religion, sexual orientation, citizenship status, or disability.  Speech that encourages others to commit suicide or harm themselves will also land a student in school and legal trouble.  Videos or photos or recordings that invade the privacy of others will also land a student in trouble --  even if the student thinks it is a prank. 

Cell Phone Videos:  In recent years, cell phone videos have been used powerfully to show abuse being committed by police, staff, teachers, or students in a school.  It is generally legal to video the police at their jobs, and generally legal to video in a public location, however, a school might have rules against making cell phone videos in school.  Therefore, if you are making a cell phone video at school, you should do so very discreetly so you are not seen doing this and only make a video if you feel you are morally obliged to do so because you are witnessing abuse by a person in power.  You may have to later defend your actions, but we assume you are making the video because you feel a moral imperative to do so-- for example, you feel you are witnessing intolerable abuse and want to make a record of it so the person is held accountable.  If you find yourself in this situation, it is really best to get advice and help from a lawyer or legal organization.

If you make a video of such people, you may be invading privacy if you post the video online.  Youtube has a "face blurring" tool.  You can read here about the Face Blurring Tool.   Using a face blurring tool does not guarantee you will not be accused of invading someone's privacy, but it is helpful.

If you make a video that depicts sexual activity or nudity of someone, you should not post that online, because you may be distributing child pornography or pornography or obscenity.  You need to consult with a lawyer, because you may have created child pornography by making the video.  You may have wanted to "bear witness" to abuse you saw others committing, but you are likely to be perceived as a participant since you were there with a video camera.  Do not post such a video and do not pass it around.  Seek legal advice immediately.  If you need free legal help, there may be a legal clinic in your community or at a local university or law school.

In most instances if you are present when a fellow student is engaged in sexual abuse of another student, it would be better if you were to either intervene to stop the sexual abuse you are witnessing, or to seek a private location and call police.   You might be surprised at how powerful it can be for one person to say, "Hey, stop doing this."  The best course of action would be to walk out and call police. The worst course of action would be to participate or to stand around gawking or laughing.

IF YOU HAVE MADE  A VIDEO that depicts abuse by a school police officer, staff, or teacher, this can be used as a powerful form of protest that can lead to significant changes at your school.  However, be cautious and aware that your path may not be easy and you will need all the legal support you can get.