A student-athlete at a public school engages in a momentary, silent act of political protest on the sidelines of an athletic event. The school imposes punitive consequences, in the form of removal from the team.
The First Amendment violation couldn’t be clearer: A government agency takes official action in response to constitutionally protected political expression with the purpose of inhibiting future expression.
You can’t get this one wrong. So how come so many federal judges have?
Students’ free-speech rights are being put to the test at schools throughout the country as young athletes, emulating former NFL quarterback Colin Kaepernick and those inspired by him, kneel or sit during the national anthem to express frustration over the treatment of minorities by law enforcement.
The U.S. Supreme Court has told us—more than once—that public schools are bound by the First Amendment and must tolerate peaceful acts of political dissent, even on school grounds during school time. In 1943, the Supreme Court’s West Virginia State Board of Education v. Barnette decision recognized the right to abstain from the Pledge of Allegiance on religious grounds. In 1969, the Court expanded on this ruling in Tinker v. Des Moines Independent Community School District by deciding in favor of anti-Vietnam War protesters, whose wearing of black armbands to school in defiance of a school directive to remove them was found not to have materially disrupted school.
Logically, students’ right to express themselves on the sidelines of a ballgame should be even less impeachable than, as in the 1969 Tinker armband case, in the classroom during school hours. A school’s need to maintain quiet and concentration is greatest during instructional time; the same expression that might go unnoticed in the celebratory chaos of a football stadium would interrupt learning in math class.
Yet, schools that would not contemplate suspending a student for sitting out the Pledge of Allegiance during the school day are now insisting they can kick students off the football team if they refuse to stand for “The Star Spangled Banner,” as a principal in Bossier City, La., threatened in a Sept. 28 letter to parents.
As unsound as that legal argument is, schools do have some precedent on their side.
The U.S. Supreme Court has told us—more than once—that public schools are bound by the First Amendment and must tolerate peaceful acts of political dissent."
A handful of high-profile appellate court rulings over the past decade have denied legal challenges against school districts accused of infringing on students’ First Amendment rights, including from a cheerleader kicked off the squad for silently refusing to cheer for a basketball player who was under criminal investigation for sexually assaulting her, a high school blogger disqualified from holding class office for writing a post calling out her school’s administration in coarse terms, and high school athletes who were removed from the football team after petitioning for the ouster of their controversial coach.
Courts have reached these outcomes by ignoring a half-century’s worth of unmistakably clear First Amendment doctrine that government agencies may not withhold or revoke even entirely discretionary “privileges” for the purpose of deterring or preventing speech.
Not every judge has been willing to grant schools such blank-check punitive authority.
In an Oct. 5 ruling, a U.S. district court in Pennsylvania directed a high school to reinstate a cheerleader who was removed from the squad after she posted a photo to Snapchat with a profane caption from a local convenience store on a non-school day.
The judge found that the First Amendment status of speech is unchanged regardless of whether the punishment is suspension from school or merely the withdrawal of extracurricular “privileges.”
The mistaken notion that a privilege may be freely withdrawn even for speech-punitive reasons has been repeatedly contradicted by the highest court.
In its 1967 Keyishian v. Board of Regents of University of State of New York decision, the U.S. Supreme Court categorically swept away the “rights-versus-privileges” distinction in striking down a New York law that required government job applicants to swear a loyalty oath. As the justices emphasized in that case, any use of government authority that is meant to inhibit legally protected speech—even the withdrawal of a purely “discretionary” benefit, such as a job opportunity—is punitive enough to violate the First Amendment.
This principle was recently reaffirmed in a 2013 Supreme Court ruling that invalidated a condition attached to federal AIDS-education grants requiring grantees to express only government-approved messages about prostitution. Even though there is no “right” to receive a discretionary grant, the court ruled, eligibility cannot be conditioned on a waiver of First Amendment rights.
Outside of school, everyone knows that the government cannot punish disfavored political speech by denying the speaker a “privilege.” A driver’s license is a privilege, for example, but that doesn’t mean the Department of Motor Vehicles could lawfully refuse to issue a license to a columnist who criticized the DMV.
Likewise, everyone knows that a school could not take away a discretionary privilege to punish a student for defying a coach’s order to convert to Judaism or to renounce allegiance to America, because those orders would be unconstitutional. So is an order for students to stand during the national anthem.
While losing a spot on the cheerleading squad or the football team may seem too trifling an injury for the proverbial federal case, no injury is too trivial in the adult world if the government’s motive is to deter speech—not even canceling an employee’s birthday party, as the Supreme Court said in a 1990 opinion in Rutan v. Republican Party of Illinois.
Students are expected to absorb constitutional indignities that would be intolerable if inflicted on adults not because that’s consistent with constitutional doctrine, but because of judges’ increased willingness to disregard doctrine in a cynical effort to purge their dockets of cases they deem insignificant.
But it should not take a court order to compel public schools to respect—or even embrace—brief and harmless displays of enthusiasm for social causes. Schools regularly claim that they are in the business of producing informed, participatory citizens. Students with the fortitude to commit to a political stance, in defiance of high school’s formidable social pressure to conform, are tomorrow’s civic leaders.
A version of this article appeared in the November 01, 2017 edition of Education Week as How Are Schools Getting Away With First Amendment Violations?