HANOVER, Va. (WRIC) — The Hanover School Board is considering a change to its student code of conduct that could restrict students’ First Amendment right to protest.

The changes, which were drafted and proposed by the school administration, would introduce a new passage near the end of the code of conduct that reads as follows:

Protests and Walkouts

Students are entitled to a learning environment free of unnecessary disruption. Demonstrations, including protests and walkouts, are prohibited. Any physical, written, or verbal disturbance, communication, or activity within the school setting or during related activities, which may interfere with teaching or the orderly conduct of school activities is not allowed. Participation, including leaving class, the student’s assigned location or campus, during school hours will be subject to disciplinary action.

Proposed addition to the Hanover Student Code of Conducts “Definition of Terms” section

The terms “Protest” and “Walkout” do not appear anywhere else in the revised version of the Student Code of Conduct. Beyond the definition offered for prohibited walkouts, the policy does not specify what demonstrations would be grounds for sanctions under the existing code.

A spokesperson for the school division told 8News that the change was only intended to “clarify the current Code of Student Conduct, which outlines our longstanding expectations for behavior and attendance.”

When asked whether that meant the school division believed that “demonstrations, including protests and walkouts” were already broadly prohibited and punishable under the code of conduct, the spokesperson did not answer directly.

Instead, he told 8News that the policy was “not an addition to the Code of Student Conduct,” and reiterated his earlier statement.

READ: Hanover County’s Code of Student Conduct for secondary students and elementary students

Navigating the First Amendment

Timothy Zick, a professor of law specializing in freedom of speech at the College of William & Mary, told 8News that as written, the policy may be open to a constitutional challenge.

“It’s possible someone might construe it as a blanket ban on protests and demonstrations,” he said. “In which case, it would be unconstitutional.”

He added that the policy was “not artfully drafted,” but it’s likely the administration’s intent was not to institute a blanket ban, but rather to make it so that demonstrations “are banned if they may disrupt education in the schools.”

The most important precedent for students’ free speech rights is a 1969 Supreme Court case, Tinker v. Des Moines, in which a group of students was suspended for wearing black armbands in protest of the Vietnam War.

The court eventually ruled in favor of the students, and the case has been cited in a number of other cases in the decades since. It set a standard that still applies today, requiring schools to prove that specific actions would “materially and substantially interfere” with school operations in order to justify restrictions on a student’s free speech.

Zick said that in light of the standard set by Tinker v. Des Moines, it’s up to the school division to clarify that there are still broad categories of speech, including demonstrations, that constitute “protected speech in the school context.”

“The policy would be clearer if it (a) defined “demonstration” and (b) clarified that “demonstrations” and other speech activities are subject to discipline not if they “may” interfere with teaching or learning but rather only if they actually cause disruption or officials reasonably forecast actual disruption will occur,” Zick said.

Why Now?

Some students in Hanover County recently took part in protests against the school division over its failure to adopt a non-discrimination policy to protect transgender students, as required under state law.

The division is also facing a lawsuit from parents of trans students in Hanover, represented by the American Civil Liberties Union of Virginia (ACLUVA).

The policy proposal comes just a few weeks after students walked out of class to protest the board’s inaction on their non-discrimination policy.

Eden Heilman is an attorney and legal director of the ACLUVA, and she said the new policy “raises significant constitutional concerns.”

“My sense from just the timing of this is that this could potentially be retaliatory,” Heilman said. “One important thing to consider here legally is that school’s policies have to be content-neutral in this regard.”

That means the school has to levy the same punishment for the same types of actions, regardless of whether they’re committed as part of a protest or for other reasons. For example, a student who participates in a planned walkout could not be punished differently from a student who simply decides to leave class unexcused to go home.

The new addition to the code clearly distinguishes “protests and walkouts” from other types of classroom disruptions, but the addition does not include separate punishments compared to infractions already outlined in the code.

Heilman, like Zick, also said the policy didn’t clearly define what speech it was restricting, calling the draft language “vague and potentially over-broad.”

A Public Hearing

When reached for comment, School Board Chair Ola Hawkins, speaking on behalf of the entire board, told 8News that “it would be premature for the School Board to comment on this item.”

She added that because the board members have not yet been formally presented with the draft language, they “do not have a full understanding of the proposed revisions or the context.”

The Hanover School Board will formally take up the policy at their meeting on Tuesday, May 10 – but they won’t be voting on it just yet.

Instead, the agenda shows that the board will make its “first read” of the policy, receiving a presentation from school staff and providing their own initial feedback on the proposed language.

On Tuesday, the board will also accept public comment, which Hanover residents can sign up for by emailing their name, their magisterial district and the subject of their comment to sbpubliccomment@hcps.us before noon on the day of the meeting. Otherwise, residents can sign up for public comment in-person before the start of the meeting.