Day of Silence FAQs

by Franczek Radelet P.C.
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[author: Kendra Berner]

The Day of Silence, a national, youth-run effort to protest harassment and bullying of lesbian, gay, bisexual, and transgendered (LGBT) students, will be observed on April 20 this year. Students participate by remaining silent for the day to support LGBT students who are silenced by bullying and harassment. In anticipation of this event, we have prepared some brief answers to questions school districts frequently ask about this event.

Can the district prohibit students from holding or participating in the Day of Silence?

No. Students have free speech rights in school, including the right not to speak. In the school context, however, speech rights can be limited, such as speech that is likely to create a substantial disruption, speech that is lewd or obscene, speech that might be understood as approved or endorsed by the school, and speech that encourages illegal drug use. The Day of Silence is unlikely to fall into any of these categories, though students can be required to speak in class so as not to disrupt the learning process. Additionally, if the school allows students or student-led organizations to post signs, hand out fliers, or make announcements when promoting other events, students organizing a Day of Silence should be allowed the same access.

Won’t it appear that the district is advocating a gay/lesbian lifestyle?

Allowing students to speak (or not to speak or to wear t-shirts/buttons) is unlikely to be perceived as school endorsement. The district’s respect for student participation in the Day of Silence should be characterized as part of its pedagogy that promotes tolerance as well as critical thought about political and social issues, preparing students to become good citizens.

What if other students react negatively to the demonstration?

Students who disagree also have the right to express themselves. Courts have upheld students’ right to wear anti-gay t-shirts in response to the Day of Silence. However, if student expression takes the form of threats, is lewd or obscene, or is likely to cause a substantial disruption, the school can restrict it. Note that neither discussion about a topic nor others being uncomfortable or offended qualifies as a likely substantial disruption. Conversely, if the response violates the district’s policy against harassment and bullying, the district should discipline the harasser(s) accordingly.

How can teachers conduct class if the students are silent?

The district can require that students answer questions in class while allowing participation in the Day of Silence during non-instructional time. Alternatively, districts can respect students’ silence even in class, and teachers can present lessons involving teacher lecture, silent reading, and/or writing assignments.

What can the district do to prevent bullying and harassment of LGBT students?

The district should have a policy specifically prohibiting bullying and harassment based on sex, sexual orientation, and gender-related identity or expression. Additional guidance can be found in this prior alert concerning a Minnesota district that came under fire for allegedly failing to adequately address and prevent such bullying.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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