“Freedom of speech to me does not mean freedom of movement, freedom of time, choice, freedom of activity, choice,” Flagler County School Board member Janet McDonald told her colleagues during a workshop on Tuesday. At school, freedom of speech does not belong outside the classroom, and it cannot be related to anything other than what’s in the curriculum, she said.
“Yes, free speech within the parameters of their responsibility as a student within their curriculum area,” McDonald said. “There is more than enough time to have their freedom of speech that has nothing to do with the schools, outside of schools, where it belongs.” She continued: “It’s not our purpose to provide a safe space for someone who has an issue that happens outside of our parameters and outside their contracted day.”
The statements were McDonald’s bluntest rejection of students’ right of speech and demonstration since she has been driving her colleagues and the administration to re-write the district’s “Boycotts, Walkouts, Sit-Ins and Other Disruptive Acts” policy. She’s been doing so in the wake of student-led protests against the newly enacted law dubbed “Don’t Say Gay” by its opponents–a law that forbids school employees from discussing gender identity with students in younger grades, and that gives parents at any level room to sue schools and districts if they feel their child is being made unduly uncomfortable by any given subject matter.
On March 3 Flagler Palm Coast High School junior Jack Petocz organized and carried out a brief, 12-minute walk-out at FPC protesting the law. The walk-out was coordinated with one at Matanzas High School and at other schools in the state. McDonald, who’d never objected to a walkout protesting lack of school safety after the Parkland school shooting, was at FPC to observe the protest and subsequently said it should never have been allowed, criticizing school and district staff for letting it go forward. (McDonald supports the “Don’t Say Gay” law.)
McDonald and Fellow board member Jill Woolbright, who monitored the demonstration at Matanzas, then sought to have the demonstration policy reopened, and School Board Chairman Trevor Tucker agreed. The existing policy is a three-line document that left several issues unaddressed.
School Board attorney Kristy Gavin presented the new proposal at Tuesday’s workshop.
“It’s basically recognizing that you all have the authority and responsibility to preserve the order and ensure the proper functioning of districts educational program for students in Flagler,” Gavin told the board, summarizing the policy.
While “disruption of the educational program the school by disorder or any other purposeful activity will not be permitted,” the proposed policy states, “The superintendent shall develop procedures to provide guidelines for the school administrators to follow when a school needs to impose restrictions on the time, place and manner of students desiring to exercise their right to free speech or activity in order to maintain a safe and peaceful campus for all students and district employees.”
Disruption, based on case law, must “materially and substantially” interfere with school operations to be defined as disruption, Gavin said. A school or a district just calling something “disruptive” isn’t enough.
Unlike its predecessor, the proposed policy explicitly recognizes the right of students to protest: The district can’t just say no. But protest must take place within certain limits. The proposed policy goes on: “Students seeking to express their ideas and opinions through demonstration must discuss that reasonable time, place, duration and manner restriction with school administration in advance.” Gavin said that the district would be “recognizing them that students have a right to free speech, but that those rights cannot infringe on the rights of the others or interfere with the orderly operation of the school.” Otherwise, disciplinary action may kick in.
In that sense, the March 3 demonstrations, which were carried out starting during class changes, to minimize lost time, and expressed at the schools’ tracks, did not interfere with school operations, and were permitted by the district and the two schools. Some students, including Petocz, were suspended for violating a rule against distributing or carrying flags. Petocz distributed rainbow flags to participants. The violation resulted in a permanent mark on his record.
School employees are barred from participating, endorsing or promoting demonstrations in any way. That prohibition also allows the district to prevent school staff from choosing sides, or from attempting to sway students under the guise of informing them.
“So if district employees cannot, why can students?” McDonald, who is pushing for an outright ban on student demonstrations she doesn’t agree with, said.
“Because,” Gavin said, sighing, “there is case law that sets forth that students do not shed their rights to free speech at the door.”
“Right but their free speech can be shared within the confines of a classroom, within the confines of the curriculum, rather than in something that is beyond their designated assignment during the day,” McDonald said. In a slight against Gavin, who had drafted it, McDonald (who twice last year attempted to fire Gavin) called the one-page policy “gobbledygook,” and asserted her claims that free speech doesn’t belong in schools. McDonald said the proposed policy was an “anything can go” type of document.
School Board member Colleen Conklin disagreed, pointing out first that the proposal is in fact very brief. (It adds up to 233 words, the length of a four-paragraph newspaper brief, or something significantly shorter than the prayer McDonald improperly invited a pastor to intone before a school board meeting when she chaired the panel). “And I don’t think it describes an anything goes type of event,” Conklin said. “It gives the superintendent and the school administration the opportunity to work with students so that learning continues, isn’t disrupted, and also provides consequences, which students do not do, or follow through with what has been discussed and arranged or worked out with school administration. So that students free speech is not violated, but the learning environment is not disruptive.”
Conklin preferred an even more detailed policy to provide “more parameters.” The proposed policy is a middle ground that spells out some of those parameters, balancing the various interests and rights. “So I’m comfortable with what’s in front of us and moving forward.”
To Woolbright–who is running for re-election and has toned down some of her more incendiary rhetoric–the policy was open-ended rather than “definite enough,” leaving room for challenges. But the specificity she was asking for–naming the places where protests may be held, specifying the time, and so on–would be set out in procedures that have yet to be written. The policy calls on the superintendent to write those detailed procedures, as Conklin pointed out: “This is a district, school-based operational piece. This is not a policy oversight piece in in my opinion.” Debating particular walkouts and their purpose isn’t the issue, she said. “We should be sticking and focusing on an appropriate policy to provide parameters to administration and to the superintendent. And that’s it.”
Woolbright also wanted school employees neither to encourage or discourage participation in student protest. “I think they should completely stay out of it,” she said. And she favors students signing a contract–what would amount to a protest permit–before going ahead with their plans. Tucker was for adding some details to the policy as well, but only to the extent that it would clarify certain inadmissible messages–such as advocating for drugs, acting violently or advocating violence and the like.
It was then that McDonald returned to the charge about free speech’s limits, and having nothing to do with actions, time or activity, a remarkable statement that reduces the definition of speech to a walled off, invisible, inaudible location, in essence a “free speech” zone of the district’s definition that defeats the very purpose of free speech. She then said, inaccurately, that students were barred from praying except at the flagpole, outside of school hours.
Students may pray any time, anywhere in school if they so choose, as during the now-statutorily required moment of silence at the beginning of school (as may faculty and other employees). The school itself may not lead students in prayer, nor may school, grounds be used during school hours to organize any form of organized religious event, as that would violate the first Amendment. What McDonald was referring to is the annual “see you at the flagpole” events organized by Christian churches specifically to encourage students and faculty to pray together, in an organized event. The legal community is divided on that score, with some constitutional scholars seeing the event as violating the First Amendment, others not, the compromise resulting in non-school-hour gatherings at the flagpole. The event is not comparable to student demonstrations such as those in response to the Parkland school shooting, for example, or the murder of George Floyd by a cop.
McDonald further re-stated inaccurate assumptions, referring specifically to the “Don’t Say Gay” protest that prompted the renewed look at the demonstration policy and claiming that students didn’t know what they were demonstrating about, and that what they were doing was “based on misinformation.”
“Where is walkout in our curriculum? That is not free speech. That’s free action,” she said–again sharply mischaracterizing free speech law, which has long recognized that free speech isn’t at all just about “speech” per se. In a landmark case illustrating the intersection of speech, action and public schools, for example–the 1943 Supreme Court decision holding that compelling public schoolchildren to salute the flag was unconstitutional–the issue revolved exclusively around an act that was neither part of the curriculum nor involved speech as literally defined. Gavin illustrated the point by pointing to another landmark case–students silently wearing armbands to protest the Vietnam war. McDonald, however, frequently mish-mashes apple and orange legalities.
Conklin tried to make the case gracefully: “What I’m hearing is some opinion,” she said. “When we look at constitutional law, students do have first amendment rights to freedom of expression.” She added: “My only understanding is that school or school district can restrict speech is when it becomes disruptive, or dangerous, or lewd, or promotes illegal activity or drugs. Other than that, it cannot be restricted.”
By the end of the 30minute discussion, it was clear that McDonald’s positions would not carry. Gavin said she would be adding details about disciplinary action that would befall students who engage in illegal or inappropriate activity, and include language about demonstrations having to have an educational component.
“Is there an opportunity for our administration to also inform students so they don’t expose themselves for not understanding what they’re protesting?” McDonald asked.
“Yes,” Superintendent Cathy Mittlestadt replied, “the guidelines that the team is developing includes a communication plan of all the stakeholders that will be impacted.”
But the two officials were misunderstanding each other. McDonald wants student protesters to be guided, or lectured or counseled, before a demonstration, in such a way that they would be “informed” about what they’re protesting–“so that school administrators can help educate students so that they are clear about their purpose and the way that they’re using their time or showing themselves in public is purposeful and effective,” McDonald said.
But that’s not what would be done, nor what Mittlestadt meant, Gavin said. Faculty and staff, b y policy, may not encourage or discourage demonstrations, which also means that they may not interfere with the content of the demonstrations. What the superintendent was referring to, Gavin said, aligns with the proposed policy: “If administration is made aware of potential for a demonstration, we need to make sure that anyone who’s going to be affected is notified and a communication is made to them,” Gavin said, “so it might mean we’re notifying teachers, it might mean we’re notifying specific administration, it could mean we’re notifying parents, depending on what exactly would be taking place. So that’s what she means by stakeholders, and it also would include notifying the board.”
Speaking to students under the guise of “informing” them about a specific issue they are demonstrating would be outside of policy. “Faculty is not to participate. That would be faculty participating,” Gavin said, though the faculty would not be barred from developing teachable moments, say, about the methods and purposes of demonstrating, nor would a school be barred from organizing a forum on an issue of particular concern. “If they want to conduct a forum and present both sides, that could be something that happens. I don’t envision that happening, but it could happen,” Gavin said.
The proposed policy will be redrafted and submitted to the school board on May 17 not for approval, but to approve it being publicly advertised for the required period before it may be voted on. The draft policy, without Tuesday’s additions, is here.