Nebraskans Against Government Overreach Protests
We have heard from many of you seeking guidance on how to respond to protests that a group called Nebraskans Against Government Overreach is attempting to organize at numerous school district locations across the state on May 14, 2021. (In case you haven’t seen information about these proposed events, you can check out the organization’s Facebook page here.) Regardless of how individual administrators or board members may feel about the ideas espoused by this group, your legal obligation is to respond to this group like you’d respond to any other protesters, without advantaging or disadvantaging them based on their viewpoint or content of their message.
That Pesky First Amendment Again. As an initial matter, you cannot just prohibit this group from gathering outside your school buildings without considering your policies and practices on facility use and gatherings during the school day. After all, the First Amendment protects “the right of the people peaceably to assemble.”
You do not have to allow these demonstrations to happen wherever and whenever the group wants on school property. The Supreme Court has said “the government’s ownership of property does not automatically open that property to the public.” U.S. v. Kokinda (1990). However, you should treat all groups, including this one, the same way. For example, if the Gideons are permitted to distribute their Bibles on school grounds after school out of the way of your bus and pick-up traffic, this group should be given the same courtesy. However, if you ban facility use during the school day by outside groups, you could ban this group on the same basis
You likely do have to allow this group to gather on the public sidewalk or street outside your school. In United States v. Grace (1983), the U.S. Supreme Court wrote that the “public sidewalks forming the perimeter of the Supreme Court grounds, in our view, are public forums and should be treated as such for First Amendment purposes.” The Court explained that these same protestors would not have to be allowed inside the Supreme Court building or on the steps right outside the Court. However, the Court has clarified that “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Kokinda (1990). You may want to communicate with your local officials and law enforcement regarding any restrictions or permitting requirements they may have on public streets and sidewalks just off school grounds
You can require these demonstrations to remain orderly and non-disruptive. For example, the protestors must allow pedestrians to pass by and must not block building entrances or disrupt classes.
You should plan thoughtfully for what may happen on May 14th. For the most part, we think protests like these are best met with public indifference. When someone from the community asks you about the protests, you should shrug and say something like, “They have a right to protest and we are going to focus on kids like we do every day.”
That does not mean that you shouldn’t spend some time thinking through various scenarios. We don’t know your school as well as you do, of course, but here are a few items you might consider:
You should communicate with local law enforcement to see if they will have officers present or available to be sure the protest is orderly and in compliance with any applicable village/city or county requirements.
You should consider if there are areas outside your building where even protesting on the public sidewalk would be disruptive (for example, outside a kindergarten classroom that is dismissing midday).
You may want to have recess or PE occur in the school’s gymnasium instead of outside.
Staff should be instructed to double check that all doors are locked and security protocols are followed.
Teachers who have classrooms overlooking the protest area may want to close blinds/curtains.
If students and teachers wish to participate, you should enforce your attendance, leave, and absenteeism policies as you would with any other request for non-medical, personal reasons. You may have thought through protocols for things like the walkouts planned after the Parkland school shooting that may be helpful to review and consider.
Finally, we are huge fans of allowing your social studies and civics classes to go out and observe the protest as a living, breathing lesson in what the First Amendment allows. Although it’s obviously not as awesome as a KSB digital citizenship assembly, having students observe and be present can be useful as an educational exercise and help ensure the protest remains civil.
Conclusion. We know that most educators just want the COVID drama to be over so that we can focus on teaching and learning. However, for good or for ill, school districts have become lightning rods for a variety of political issues. We believe schools should prepare for these protests to address them in a lawful and thoughtful manner. If you have questions about your district’s approach as you work through the issues, you should contact one of the KSB attorneys or whichever school attorney your district regularly consults.
