Key Points:

• Anti-immigration protests over the past few weeks have included students and teachers walking out of class 

• Legislators and some state officials have questioned if they should be using class time to exercise their First Amendment rights

• Two First Amendment experts said if legislators did write such a law, it would have to be content-neutral and narrowly tailored

In the past few weeks, students and teachers have walked out of school to protest the actions of immigration authorities and the federal government. 

On Jan. 30, thousands of Tucson Unified School District employees called out sick, according to the Arizona Luminaria. As a result, 21 schools closed due to lack of staff. While peaceful protest is protected under the First Amendment, several legislators and state officials have questioned whether it should be allowed during school hours. 

After the protests, state Rep. Matt Gress, R-Phoenix, and state Sen. Hildy Angius, R-Bullhead City, said in a news release they’ll introduce legislation to limit when public school students and teachers can protest. Angius said the closures highlighted a lack of accountability in school district systems and a troubling willingness to disrupt students’ education for political purposes. 

“Parents send their children to school expecting stability and instruction, not sudden closures driven by organized protests,” Angius said in a news release. She chairs the Senate Education Committee. “Using sick leave to shut down campuses crosses a line and undermines trust in public schools.”

They weren’t the only ones concerned with protesting during school hours. Sen. John Kavanagh, R-Fountain Hills, pointed out the number of schools that had to shut down and added, “Time to revoke some teacher licenses” in a post on X.

The Arizona State Board of Education said they have not been contacted by any legislator regarding that topic and didn’t have a comment, per Executive Director Sean Ross. All decisions related to student attendance and behavior are addressed at the local level by the school or district, he added. 

However, State Superintendent of Public Instruction Tom Horne said in a statement on the Arizona Department of Education’s X page that students have the First Amendment right to peacefully protest but “it should be done after school hours. Teachers and other school personnel should not be a part of a protest during class time.”

Speaking up in opposition to potential legislation, Sen. Catherine Miranda, D-Laveen, said the threat is another example of the Republican Party claiming to stand for freedom and the Constitution while criticizing educators for exercising their constitutional right to speak out. 

“Educators are human beings and Americans first. They have the same rights as anyone else to raise their voices when they believe their students and communities are being harmed,” she said in a news release.

She acknowledged parents’ frustration and said it’s understandable, but the focus should be on addressing the root cause affecting school communities. She added, “You cannot demand stability in schools while ignoring the conditions that are creating fear and instability for students and staff.”

Meanwhile, organizations like the nonpartisan, nonprofit advocacy group Secular AZ have a form on their website that serves as an excused absence for students who are protesting. The group frames protesting during school hours as an important exercise of civic engagement. It also cites several court cases, including Tinker v. Des Moines, one of the most famous student free speech cases. 

The case determined that schools may regulate conduct that materially interferes with school operations, but it does not require punishment when school officials determine that student demonstrations serve legitimate educational and civic purposes. The court ruled students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

If such a law was written that told students and educators when they could protest, it would need to be narrowly tailored and content-neutral, two First Amendment law experts at Arizona State University said. Neither speaks on behalf of the university. 

The First Amendment is broad and it doesn’t cover any specific time frame on when people can protest, Gregg Leslie, Executive Director of the First Amendment Clinic at the Sandra Day O’Connor College of Law, said. 

“The biggest thing is if someone’s trying to make a law to make this illegal and they’re doing it based on the content of their speech, then it’s subject to a higher level of scrutiny,” he said. 

As for addressing potential absenteeism, if lawmakers make a special rule regarding being absent because people are exercising their freedom of speech rights, then it would be a content-based regulation and it should be struck down, he said. If there’s a broader policy on absenteeism that’s very strict, but it applies to all situations, then it would likely be upheld. 

It could also have a chilling effect on people exercising their First Amendment rights, or it might do the opposite and encourage more protesting, Leslie said. 

Any law restricting when students and teachers could protest would have to be narrowly tailored and content-neutral, Erin Coyle, Associate Professor of Media Law and the First Amendment at the Walter Cronkite School of Journalism and Mass Communication, said. 

Content-neutral essentially means that restrictions or punishments for engaging in free expression and freedom of assembly would have to be applied in ways that do not single out or target particular messages, she said, and they would also have to be narrowly tailored.

“If they are limiting any expressive activity, they are limiting the least amount possible. It’s possible that a law could be written that appears entirely neutral, and that it is not written in a way that it is specifically targeting protesting, or protesting on specific topics. It also would need to be in a neutral way,” she said. 

What about private school employees? 

Leslie said there have been a lot of attempts in Arizona to apply everything to all school teachers, but it depends on the authority and the state laws that govern private schools.

“If they found a justification, if they found a cause or even if, you know, there’s often some level of state funding of private schools,” he said, “and so they could certainly threaten to withhold money. A creative legislator could try to find a way to make it apply to private schools.”