Last week, students and families of Eagle Valley Middle School were threatened with truancy and in school suspension (ISS) if they participated in protests alongside other local and regional schools, prompting civil rights attorneys to consider litigation over what they say appears to be a violation of students’ First Amendment rights.
The issue isn’t that students would receive consequences for truancy — the issue is that additional punishments were being threatened specifically for students who were truant due to engaging in a political protest, which is where ACLU says the constitutional violation occurs.
The language used in the email sent to Carson High School families and students regarding the protest displays what the ACLU says is an acceptable consequence: stating students who were not in class would be given an unexcused absence, which is the same consequence levied to any student who is absent from class.
The Carson City School District maintains the email sent by EVMS Principal Gina Hoppe does not violate the law, and stated that attendance, behavior and safety policies are applied equally to all students, regardless of the reason for their absence.
“All schools in the district diligently adhere to their attendance, behavior and safety policies and regulations, as well as all applicable laws,” the district said in an issued statement. “That adherence is applied steadfastly, equally to all students and does not change as a result of any desire to protest. The district, including the athletic department, does not restrict or encourage a student’s ability to protest, but it does maintain and enforce all applicable polices, regulations and laws surrounding attendance, behavior and safety.”
However, when asked whether or not all students at EVMS automatically receive in-school suspension and a truancy for leaving class or being listed as an unexcused absence, the district did not answer the question directly, instead stating it’s an “option” dependent upon severity of truancy.
The American Civil Liberties Union of Nevada does not agree with the district’s stance, and maintains that the language used by EVMS appears to be a direct violation of the law — one which the ACLU said they will move forward to litigate if a complaint is made to them from a student or family member.
According to Athar Haseebullah, Executive Director and civil right attorney for ACLU Nevada, federal courts have ruled time and time again that students cannot be punished for engaging in their first amendment rights, and they cannot be threatened with a punishment to stop them from attending protests or walk outs.
Language — and consequences — differ from Carson High email
The warning issued at EVMS came in response to student walkouts across the country last week protesting the killing of U.S. citizens by federal agents in Minnesota as well as the recent escalated enforcement tactics of ICE and Border Patrol officers nationwide.
Carson High School students staged their own protest, but the district’s message to CHS families differed in a key way.
In that notice, students and families were informed participating in a walkout would result in an unexcused absence, but no additional disciplinary consequences were levied.
The ACLU maintains this is acceptable and does not violate law, because the same action is levied against all missing students regardless of the reason for their absence.
The difference is the possibility punishments would be escalated for students absent for political reasons.
‘Chilling’ First Amendment activity
Haseebullah said the EVMS message constitutes what courts refer to as a “chilling effect” in which a government action unlawfully discourages people from exercising their constitutional rights.
He said schools are not permitted to discipline students for actions that constitute first amendment activity, and punishing students for protesting — or planning on protesting — opens the district to litigation.
“The notion that they would send out an email in advance or during the process of when this [protest] is occurring actually has a significant chilling effect on First Amendment activity, and would likely be viewed as a prior restraint in violation of the law.”
When discipline would be warranted, or at least not constitute a violation of student’s rights, is when student actions were observed to be disruptive — but even still, discipline would need to be issued on an individual basis, rather as a blanket punishment, Haseebullah said.
“It would be one thing if students jumped up in the middle of class and staged a protest in class, right? But a school walkout, which has been what’s happening in statewide, is not going to end up rising to the same level of disruption. In many instances, students are leaving the school’s campus. They’re not interfering in the academic function of a class, and they’re not interrupting other students’ ability to learn right. If that were to happen, that’s a different set of criteria.”
District Policies
The district’s discipline policies state that ISS is an optional response to truancy, rather than a mandatory one.
In a follow up response, the district acknowledged that ISS is an option for truancy in some cases:
In-school suspension is an optional action (depending on severity and/or frequency) for students who are absent or leave school without permission from a parent or guardian, or who otherwise cause school disruption. This possible consequence is not due to students choosing to protest, it is due to truancy and school disruption.
However, the district’s attendance manual also states that students will not be suspended for truancy, which is accordance with state law — though it doesn’t specify whether that applies to in-school suspension, out-of-school suspension, or both.
Policy states on a first or second truancy students, might be asked to have a conference with an admin or counselor; may be assigned a consequence by the school (which becomes harsher for chronic unexcused absences), and parents will be notified. Intervention plans might also being created to provide students with support to get them in the classroom, and keep returning.
However, leveraging a truancy against a student who attends a walk out might also constitute a violation of district policy itself. By the definitions of the attendance manual, if students were to come to class, then at a designated time stand up and leave the class as part of a planned walk out, it would be subject to an “unexcused missed instruction” or a tardy — which is only meant to be referred for disciplinary action if it becomes a repeated or “chronic” issue. It also states explicitly that “unexcused missed instruction is not an absence.”
There is precedent for truancies relating to protests at EVMS, but only for students who placed themselves in danger by leaving campus and refusing to return.
Prior EVMS walkouts
EVMS students have participated in walkouts before.
In 2006, students joined protests across Carson City and Reno protesting proposed federal immigration legislation.
According to a Nevada Appeal article, published almost exactly 20 years ago, EVMS students engaged in a walk out along protesting a proposed law that would make undocumented immigration a felony.
In that case, students weren’t threatened against protesting, and in fact, appear to have been encouraged by admin to do so safely where they could be kept safe under adult supervision.
According to the article, 85 students walked out of EVMS to the Fifth Street roundabout where they ended up causing “traffic concerns,” at which point the Carson City Sheriff’s Office responded.
One student was arrested after continuing to jump into the road, according to the report, and three others were detained when they tried to interfere in the arrest.
The other students later returned to school after then Principal Fred Mariani said he told students if they did not return to school they would be considered truant.
He told the Nevada Appeal at the time that he offered to let the students return to the school gymnasium “to talk about better ways to protest, preferably one with adult supervision.”
Mariani stated that the students who remained on campus to protest did not face disciplinary actions because they were under our supervision, and walking off campus could put them in danger because “there are folks out there not supportive of their protest.”
ACLU Litigation
Haseebullah said that at this time, while they are aware of the issue, they don’t go “fishing” for lawsuits. Their purpose is to respond to complaints made to them and, if necessary, litigate on behalf of those complaints to ensure the civil rights of all Nevadans — including students — are being upheld.
He said that while they haven’t filed anything against the district at present, that’s likely to change if they receive a complaint form. He emphasized that the ACLU does not reveal the names of individuals who file a complaint, and it costs nothing.
However, he said their end goal is not litigation, it’s ensuring students’ rights are protected, and the district still has the ability to “fix” the issue.
“The district, in my opinion, should get in touch with whatever principal or school leadership sent out such an email and fix this. They have the ability to do that and mitigate against harm. The reason why we get involved is to prevent against future harms. It’s not so much to address the past that comes up; it’s really to make sure the issue doesn’t persist. And if they’re encouraging the persistence of the issue by inaction, the district’s going to find itself mired in hot water.”
We will update this story if the district responds to our follow up questions about policies and the ACLU’s claims of constitutional violations.
