Sunder Questions Whether District May Not Be Consistent with Case Law for Student Protests
While the district passed a couple of motions to educate the students and the community on the types of actions they can partake in, Boardmember Madhavi Sunder believes that the district is not in compliance with the Supreme Court decision Tinker v. Des Moines Independent Community School District and asked the board policy committee to look at current regulations to see if they are consistent with the provisions of that case.
Board President Tom Adams indicated that the policy committee would meet soon and “we’ll focus specifically on that.”
Ms. Sunder, a law professor at UC Davis, in her lengthy comments stated that, while the “school district in following existing policy was acting in good faith,” she believes “there is more gray in our own district policy.”
She explained, “The ACLU has recognized that while schools have a right to discipline students in the face of disturbance, they need to properly exercise discretion as to whether a particular 
situation warrants discipline.”
While Boardmember Alan Fernandes cited ACLU language that discipline is permissible in the face of student protests, Ms. Sunder pointed out ACLU language that states, “We hope those schools recognize that even when they are within their right to discipline students for protests, that doesn’t always mean they should.”
Education Week magazine reiterated the same message, saying “schools should realize that while punishment may be within a school’s legal right, depending on the context, that doesn’t mean it is always the best or most appropriate reaction.”
“Several ACLU chapters went further,” Ms. Sunder said, arguing that “there is simply no evidence that being absent from class for a few minutes or even a day creates a substantial disturbance or disruption or infringes on the rights of other students.”
Ms. Sunder stated, “I am concerned that our current district policies that define all boycotts as a ‘student disturbance’ do not give the required latitude for student free speech. As the Supreme Court recognized in the 1969 decision of Tinker v. Des Moines, upholding the right of Mary Beth Tinker to wear an armband to school in protest of the Vietnam War, students do not lose their constitutional rights ‘at the schoolhouse gate.’”
She argued, “The Court stated that in order to justify the suppression of speech, school officials must be able to prove that the conduct in question would ‘materially and substantially interfere’ with the operation of the school. The bottom line is that during school hours, students cannot be punished for speaking out unless their speech disrupts the functioning of the school. One could argue that a planned 17-minute, peaceful demonstration on school grounds does not ‘materially and substantially interfere’ with school operations.”
She added, “Tinker further highlights the free speech rights students clearly do have at school, for example, they can peacefully demonstrate before and after school, and during lunch hours. They can give speeches or circulate petitions on school grounds during these hours.”
Therefore, she said, “Schools cannot decide whether to give punishments based on the viewpoint or content of student speech. They can decide whether and how to give punishments depending on the time, place, and manner of the speech, and in particular, whether the speech ‘materially and substantially’ interferes with school operations.”
In short, Ms. Sunder was of the view that “the district’s approach was excessive and inappropriate.”
Alan Fernandes acknowledged that “the school district missed an opportunity.” He said, “We missed an opportunity to do some of things that we heard occurred in some of the surrounding districts.”
He said that while the district correctly “handled the matter as it relates to our policies, I do think we missed an opportunity.”
He said, “The action that we took was appropriate and lawful given the bounds of the First Amendment.” He noted the ACLU has a webpage dedicated to guidance on school district policy on walk outs and said that school districts can discipline students who participate in walkouts “because the law requires in most places, students to go to school and schools can discipline you for missing class.”
What they can’t do, he said, “is discipline you more harshly because of the political nature of the message behind your action.”
Bob Poppenga agreed that this was a missed opportunity. He noted, “There’s a full range as to how schools handled the March 24 National Walkout.” He added, “There are a lot of schools that did find creative and proactive ways to engage their students.”
One school district he cited planned an observance to remember the victims of violence and to promote peace and safety. “That’s not a political position in my view and I think it did not have to be political,” he stated. Pointing to the example he gave, he said, “That’s a creative response. I think we should have come up with something just as creative.”
But Barbara Archer disagreed. She said, “His view (Bob Poppenga) makes perfect sense to me. But it might not make perfect sense to another parent. Another parent might say, I want my kid in class learning chemistry. That’s not me for me to say.”
She pointed out that this was a group of liberal-Democrats on the board, but she said, “We serve a diverse set of beliefs in this district.”
Later she argued that an unexcused absence is not a punishment. She said, “A lot of people use very harsh words… I don’t think anyone is being punished by giving an excused absence. It’s a fact, you are out of class for an unexcused reason, according to state law. I don’t see that as a punishment.”
She added, “We need to make policy for all students.”
Madhavi Sunder made a motion, “To direct staff to educate our student body about their first amendment rights to free speech in the school house. That would include their ability to speak during lunchtime and distribute leaflets or before or after schools. To organize peaceful protests that don’t materially and substantially interfere.”
Alan Fernandes seconded and the motion passed 4-0 with Barbara Archer abstaining, stating, “I think we have already done this in our communications.”
Tom Adams made a motion, seconded by Madhavi Sunder, to “give sites the latitude to have activities around this issue on April 20 that involve students, teachers, and site leaders to determine the level of activity that they would like to have on April 20.”
That motion also passed 4-0-1 with Barbara Archer abstaining.
Once again, Ms. Sunder asked the board policy committee to look into whether the district is in substantial compliance with Tinker. Board President Tom Adams agreed to do so shortly.
—David M. Greenwald reporting
Last night, Trustee Sunder demostrated that she did not know the difference between a truancy and an unexcused absence. She stated and clearly thought that unexcused absences were truancies, until corrected by other members of the board.
It was a bit surprising and unsettling to see a board member not understand the difference after so many years as a trustee.
Was her incorrectly equating them in her mind the source of her anger and actions that led her to complain to the Sac Bee, ultimately becoming part of an anti-Davis piece that slammed and shamed our schools, and in effect, the whole community?
Makes one wonder.
I wish she had listened to the kids and used her position to support them by fighting for better laws around gun safety, rather than use this as an opportunity to bash people and humiliate the whole school district.
She did raise an important legal issue with regards to whether the district complies with the SC ruling in Tinker.
There is a big difference between wearing an armband to protest the war and cutting class to go to an anti-war protest. If the district is OK with kids taking a day off to protest they should also be OK with losing a lot of ADA money.
Greg
“ultimately becoming part of an anti-Davis piece that slammed and shamed our schools, and in effect, the whole community?”
How do you see a piece critical of the Davis school board’s action as reflecting on the whole community?
I dunno . . . let me sleep on that . . . and snore really loudly while pondering a response.
I’m wondering if Greg can explain the difference between “truancy” and “unexcused absence”.
I’m also wondering if he knows if schools take a hit in ADA money if a kid walks off campus to protest something at lunch and never comes back (and if ADA funds are all or nothing and if there is a minimum time on campus before the school can claim the kid was “in school” to get paid).
Ken A-
Ca has a relatively strict rule, but ultimately, an unexcused absence occurs based on the ed code guidelines on what is excuseable isn’t the reason for the absence: medical absences, religious absences, family emergency, and a few limited others. Accumulation of 3 unexcused absences by law equal a “truancy” with the initial consequence, if followed through by the district at that level of absences, are relatively minor in my opinion, but regarldess, there are further consequences over time and increased unexcused absemces.
So if a student has been cutting classes, this may eventually count toward a “truancy,” but isnt that a wonderful exercise in judgement and personal responsibility or act of civil disobedience to think aout one’s sitation to determine their level of want to participate knowing the consequences of said potential civil disobedience.
I mean, as adults, we all do that on a daily basis.
Mind you, there isnt a specific distinction that I saw (this I had to look into) having to do with the absence counting if it is only one period, or if it has to be a whole day to count. So I think that may be open to intrepretation. I would have to research that more.
Regarding the ada, being out of class (marked absent) for a period or two does not count against ada from what I have learned.
It sounds like the adults want to appear supportive and viewed as participants of the student protests. This is a lesson in civil disobedience. They obviously need to do it differently if they want the resulting discussion to be about gun control. Next time, leave the school so members of the community can join them or do it after school hours so the administration and the Board has no say and the discussion can’t devolve into whether the protest should be treated like a school-sanctioned rally or assembly.
This was the best statement any board member made that night.
I think it was one of the most important things said last night as well.
As a liberal myself, I fully agree with Trustee Archer’s statement, and deeply believe, as an educator, that it is our moral duty to uphold the concept and ideal that the school board passed, that “We All Belong.” And in working to give all students of all backgrounds and beliefs the best education possible, while ensuring that all students trust that we, as educators, as an education community, as a school district, must create and uphold a space where all students feel safe and free to learn without fear of judgement. And we must always abide by that guideline, no matter our personal politics.
Or, our progress toward an ever improved free and equal public education and ability to be entrusted to teach all students, loses credibility.
With my apologies for the lack of clarity, here is how this sentence should have been written.
“And in working to give all students of all backgrounds and beliefs the best education possible, while ensuring that all students trust that we, as educators, as an education community, as a school district, will create and uphold a space where all students feel safe and free to learn without fear of judgement, we must always abide by that guideline, no matter our personal politics.”
Greg
“must create and uphold a space where all students feel safe and free to learn without fear of judgement. And we must always abide by that guideline, no matter our personal politics.”
I do not understand how sanctioning a 17 minute observance, optional for the student, as no one was told they had to attend, is not in compliance with the guidelines you have stated.
> This was the best statement any board member made that night.
True that.
I don’t think it’s even reasonably likely that the current policy offends the First Amendment. With regard to the specific policy at issue, I’d be shocked if a school district isn’t even permitted to mark a student with an unexcused absent when that student chooses to be absent for a political protest (for however long).
But that doesn’t mean the school district should mark protesting students with unexcused absences. That’s the open, interesting, question that the board needs to decide. And probably should have decided one way or the other last night. If the current policy might be unconstitutional, or regardless, might be bad policy, and if we know there’s a planned protest coming up on the 20th, why not suggest a new one?
I genuinely have a hard time imagining how a better workable policy could be written. Some have suggested that you could allow protests as long as they relate to school safety in particular and/or when the protest is happening at a national level. Those still seem problematic to me, but what do I know?
Wish I could edit out that last line, “what do I know?” It sounds sarcastic, like of course I do know those ideas wouldn’t work. That’s not what I meant. I really don’t know what policy would or wouldn’t work.
I’m honestly caught in the middle on this one.
On the one hand, I don’t believe that free speech is free if there are consequences particularly from the government.
On the other hand, I do agree that you open the door pretty wide potentially if you allow something.
On the other hand still, I think Madhavi made a strong showing that the current policy goes further than what Tinker envisioned.
NRA school rallies? Pro-Life school rallies?
There is a BIG difference between free “speech” and cutting class (or blocking a freeway)….
I don’t think kids should have consequences for speaking their mind, but I do think there should be consequences for cutting class (or blocking a freeway).
One is a medium and the other is a broad category.
As in free of consequences for the CONTENT of the speech, yes. However, free speech does not mean a free pass for any conduct used to make the speech. Consequences is all part of the game.
Basic rule is “time, place, manner”… so many have paid the price for ‘the speech’… some speech is BS or worse… inflammatory, ‘tweets’, inaccurate, etc. Some have yet to pay the price for false, inflammatory, false speech/tweets…
It’s on, tomorrow Rocklin High students along with 200 other high and more than 80 colleges are going to walk out of class:
https://www.lifesitenews.com/news/pro-life-students-at-200-high-schools-to-stage-walk-out-protesting-abortion