You Can’t Try to Kill Students and Expect Them to Be Quiet About It

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Analysis Law and Policy

You Can’t Try to Kill Students and Expect Them to Be Quiet About It

Lisa Needham

Students’ rights to free speech don't stop at the schoolhouse doors. Just ask the Supreme Court.

Fifteen-year-old Hannah Watters knew she was violating her school’s code of conduct when she posted photographs of North Paulding High School’s crowded corridors to social media.  

Ignoring scientific evidence that COVID-19 can race through a group of children, Georgia had deemed it safe to open schools last week. When Watters documented what was happening in her school—overcrowded hallways with throngs of mostly maskless students—the school suspended her for publicizing the conditions. It’s the first, but likely not the last, coronavirus-related free speech battle that’s going to happen in K-12 schools this fall. 

The school walked back Watters’ suspension, though another student may still be suspended. The affair highlights a problem school districts are going to face as more schools open: how to control the messaging. 

North Paulding High School attempted to control that messaging by suspending Watters, the sophomore who took the pictures of the crowded corridors. They told her it was a violation of the school’s code of conduct, which prohibits using a phone without permission and using it to post to social media. 

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However, as Watters later explained to CNN, students in grades 9-12 are allowed to use their cell phones during non-instructional time, such as in the hallways between class—precisely what Watters photographed. In addition, Watters didn’t post her photographs to social media until after the school day was over. 

Watters admitted she technically violated the school’s code of conduct by taking pictures and video of students for later use on social media. But she did it anyway because she was “concerned for the safety of everyone in that building and everyone in the county.”

Schools use codes of conduct to control what students can say, particularly on social media. They’re often trying to get around a major U.S. Supreme Court holding that’s been in effect for over 50 years. 

In Tinker v. Des Moines Independent Community School District, decided in 1969, the Supreme Court found that students’ rights to free speech do not stop at the schoolhouse doors. In that case, the high school attempted to control free speech about the Vietnam War by barring students from wearing black armbands as a form of silent protest. 

Three students chose to wear armbands and were suspended. The Supreme Court ruled the suspension violated the students’ constitutional rights. The Court found that schools can block students from speech during school that is disruptive or “impinge[s] upon the rights of others.” And if the speech “substantially interferes” with school discipline, schools have a right to regulate or forbid it. But aside from that, schools generally have to allow students free speech. 

That’s especially true when, as here, the student speech occurred off campus and after hours. Watters didn’t post her photos or video until the school day ended, and she did it via social media, not through a communication channel controlled by the school. She didn’t disrupt the school day or interfere with school discipline. But the school used its broad code of conduct to suspend her nonetheless.

It’s a perfect example of how schools undermine Tinker’s holding that student free speech is both necessary and constitutional. By putting restrictions in a code of conduct, the school can say the student violated neutral school policy. Theoretically, any student posting anything from a hallway in North Paulding would have suffered the same fate as Watters.

But in bringing a dangerous school condition to light, Watters was engaging in vital free speech. She got the word out that things in North Paulding were unsafe and that the school was flouting CDC guidelines, which say schools should “implement multiple [COVID-19] mitigation strategies,” including social distancing and masks.

Importantly, Watters’ speech got results. There was significant press coverage of the crowded hallways and of the school’s insistence that the photos “lacked context” and that it could not enforce a mask mandate even though it enforces an elaborate dress code

After Watters’ photos appeared, North Paulding was forced to admit that nine people—six students and three staff—tested positive for the virus and had been at school that week. The district closed the school for two days to sanitize the building, then extended the closure for a full week, This seems to be mostly hygiene theater, as sanitizing surfaces won’t solve the problem of cramming maskless students together in a hallway. But Watters performed a vital public service nonetheless.

During this time, young people must be empowered to make their own determinations about their own safety. In 2018, students in Detroit staged a walkout over the contaminated water that made their schools unsafe to attend. And after the Parkland shootings that same year, students across the country walked out to protest gun violence. A direct line can be drawn from the students in Tinker protesting an unjust war, to those who walked out of their schools, to Watters’s speech. 

Students don’t give up their voice when they walk through school doors, and they shouldn’t have to give up their voice when they’re put in an unsafe situation by that very same school.