Kneeling during the national anthem in protest of racial injustice in America started in professional sports in 2016, when San Francisco 49ers former quarterback Colin Kaepernick began to kneel during the national anthem in protest of police treatment of black Americans.
The protests were met with virulent criticism; calling his actions unpatriotic and disrespectful to the military and veterans. Others eventually joined, and high school student athletes also started to protest in the same way, leaving schools to wonder if they should, or could, discipline such an action.
In 2017, five Kennesaw State University (KSU) cheerleaders all decided to kneel during the national anthem during a home football game. The protest was about the unjustified killings police officers were not being held accountable for. In the days following, the KSU President and athletic directors agreed to have the cheerleaders hidden in the stadium’s tunnel for the anthem to “improve fan experience.” They were not allowed to be on the field during the national anthem for the next two home games. In 2019, one of the cheerleaders was awarded $145,000 in settlement for KSU’s disciplinary actions following her kneeling at a football game.
Fast forward to 2020, and this type of protest is still prevalent at the professional, collegiate, and high school levels.
Many school districts and surrounding communities are supportive of their students partaking in this form of peaceful protest, and others show more resistance. The question now becomes, “Is it constitutional for a school to discipline their student athletes or students for take a knee during the national anthem?”
The First Amendment right to free speech is rooted in our constitution, providing an individual with the freedom to express their opinions and ideas without censorship or legal repercussions. Schools are now looking for guidance on how to respond and handle a situation where a student is kneeling before the national anthem without violating any constitutional rights.
Landmark United States’ Supreme Court cases such as West Virginia State Board of Education v. Barnette and Tinker v. Des Moines Independent Community School District have provided guidance on when schools have the authority to limit a student’s speech.
In 1943, in the case of Barnette, some students who identified as Jehovah Witnesses refused to recite the pledge of allegiance, leading to their expulsion. The Supreme Court held public school officials and administration cannot force a student to salute the flag and/or recite the Pledge of Allegiance if it differed with their personal religious beliefs. Compelling a student to do so goes well beyond the constitutional limitations on their authority and would harm the “sphere of intellect and spirit” the right to Free Speech provides citizens. In 1969, the Supreme Court in Tinker essentially held if a protest is not disruptive, public schools must allow it and can absolutely not prohibit it or retaliate against the students in any way. In Tinker, students wore black armbands in protest of the Vietnam War. The school’s administration immediately prohibited students from wearing these armbands, and three students who wore the armbands to school were suspended. The Supreme Court explained that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Wearing an armband is the type of speech protected by the First Amendment, and schools do not have the authority to limit student speech unless it “materially and substantially disrupts the work and discipline of the school,” and the banning of expression of one particular opinion, without evidence that it is necessary to avoid material of substantial interference with school work or discipline, is not constitutionally allowed.
Moreover, a recent Third Circuit case, B.L. v. Mahanoy Area School District, rejected the school district’s argument that a cheerleader who published disrespecting comments on social media, could be suspended form the team for violating a good conduct pledge signed by all athletes. The court said a student’s off-campus speech, even if crude, offensive, or puerile, is protected by the First Amendment and must be tolerated unless it falls under one of the limited exceptions to First Amendment protection such as threats of violence or harassment of specific persons.
A mere controversy about the content of speech or small level of disagreement about a viewpoint related to an opinion is not enough to be considering a “substantial” disruption. Specifically, the court held, “When [a student] is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without ‘materially and substantially interfer(ing) with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others.”
Schools must be able to show their disciplinary actions were caused by something more than a mere desire to avoid discomfort and unpleasantness that always accompanies an unpopular viewpoint. Schools may limit student speech that is lewd or profane, speech that is part of the school curriculum, speech that supported drug use by students, and speech that constitutes a true threat against the school. But silently and peacefully kneeling during the national anthem does not appear to fit into one of these categories. There have been no reported cases of this type of protest resulting in a “substantial” disturbance. Sports and extracurriculars are considered “privileges,” and schools cannot take away privileges as a result of not agreeing with the protected speech of their students.
Bottom Line for Schools
No matter how offended school board members, administrators, or the community may be at the sight of a student athlete taking the knee during the National Anthem, the fact is that unless a substantial disruption results, courts have universally acknowledged that the student has a constitutionally protected right to the expression. Efforts to discipline the student or suspend the student from playing could result in civil rights lawsuits with a high degree of success. Rather, schools may consider counseling students on less divisive ways to express their point of view and to provide other venues or opportunities for student expression.
If you have a question, please contact your legal counsel or one of the Education attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.