Don't Intimidate Students: An Unexcused Absence is an Unexcused Absence

Students throughout the country plan to stage various walkouts to protest having to learn in fear of being shot to death. At C.E. Jordan High School (Durham), hundreds of students left their classrooms in solidarity last Wednesday afternoon. A central component to their message is that stricter regulations on the purchase and possession of firearms could have prevented the adolescent bodies of their peers being riddled with bullets.

The politically charged atmosphere of gun control galvanized conservative responses to these protests, including the dissemination of false claims that liberal-leaning groups paid students to feign grief before a national audience. A school board in Texas sent a letter to parents threatening to automatically suspend any student for 3 days who walks out of class in protest.

To any student or parent in North Carolina who receives a similar notice from their school board: that is against the law in North Carolina, the Fifth Amendment, and it probably amounts to viewpoint discrimination as against the First Amendment.

The reality is that a walkout is not free speech issue until school administrators make it one. It should just be treated as an unexcused absence. N.C.G.S. § 115C-390 leaves it up to individual school boards to develop discipline policies for absences. No matter what, though, N.C.G.S. § 115C-390.2(d) prohibits a school from suspending a student for more than 2 days for truancy or tardiness. More importantly, prior to any suspension for truancy or tardiness, the school must provide the individual student notice of the intent to suspend the student and an opportunity to defend against suspension.

There are 116 school boards in North Carolina; each is responsible for the implementation of their own absence policy. By way of example, and just that, as it appears staff at Jordan were in large part supportive of the protest, here is a link to Durham County Public School’s Code of Conduct. Under its policy, an absence can result in suspension only in the existence of aggravating circumstances. Otherwise, in-school disciplinary measures should be utilized. It explains aggravating circumstances to include: 

  • The student's intent;
  • The student's age;
  • The student's disciplinary history, including number of infractions and prior discipline for the same violation;
  • The student's academic history;
  • Whether the conduct caused a threat to safety;
  • Whether school property or personal property was damaged;
  • Whether the conduct caused a substantial disruption of the educational environment;
  • Whether a weapon was involved; and
  • Whether any injury resulted.

Each individual, therefore, should be analyzed differently from the next under its policy prior to calling for suspension. Many school boards across the state have similar policies in reliance on the guidance of the North Carolina School Boards Association, a group consisting of policy professionals and attorneys who craft model policies that comply with state and federal law. My point is this: if a school board in North Carolina prophylactically threatens to suspend students for walking out in protest, it will very likely deviate from its already established absence policy; and no matter what, it will deprive that student of due process rights to notice and an opportunity to defend against the suspension.

Why is that important? A school’s deviation from ordinary absence policy transcends the realm of conduct-oriented discipline and enters into the realm of content-oriented discipline, and thus, it activates First Amendment protection. In addition, the deprivation of a student’s right to public education is a government-taking of an entitlement, so a policy that does not allow for a notice and opportunity to defend said deprivation also violates the Fifth Amendment.

So, here we are.

Please do not intimidate students who wish to voice their opinion on this matter of such grave public concern. The angels who arrived above us far too early last week deserve at least that much. If you do, sharp legal minds who’ve read the entire constitution, not just one-half of one amendment, will protect those students with a level of passion, vigor, and competence you can’t yet fathom.

Taylor HastingsComment