Law & Courts

Taking a Stand: How Schools Should Respond to National-Anthem Protests

By Evie Blad — October 04, 2016 5 min read
Yong Kim/The Philadelphia Inquirer via AP

National-anthem protests have spread beyond the NFL and onto the sidelines at high school athletic events recently, raising questions about patriotism, civics, and students’ free-speech rights. This Education Week primer includes advice on how schools should respond, from Frank LoMonte, a First Amendment advocate and the executive director of the Student Press Law Center.

How did these protests start?

San Francisco 49ers quarterback Colin Kaepernick, troubled by police treatment of black Americans, began quietly kneeling or sitting during the national anthem in preseason football games this summer.

“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color,” he said in an August postgame interview. “To me, this is bigger than football and it would be selfish on my part to look the other way.”

Kaepernick’s protest stirred support from those frustrated by police shootings of unarmed black men and criticism from others, who said his actions were unpatriotic and disrespectful to military veterans.

But other professional athletes joined in and, when school started, high school athletes also started protesting. Many students kneeled, but some took their own approaches. In September, Kaepernick was on the sidelines as players for Castlemont High School in Oakland, Calif., lay down on the field with their hands up. Other Oakland students, members of the district’s honor band, knelt while playing the anthem before an Oakland A’s game.

How are schools reacting to students’ protests?

The Oakland school district retweeted supportive messages and news stories about the students’ protests on its official Twitter feed. In other parts of the country, coaches and teachers have joined students in kneeling during the anthem.

“Everybody wants to talk about how this is disrespectful to the American flag,” Garfield, Wash., football coach Joey Thomas told the Associated Press. “That’s a smokescreen. How about we talk about the issues people are kneeling and fighting for?”

Around the country, dozens of local news stories tell of students taking part in similar protests. While some educational leaders have supported their students’ quiet acts of defiance, others have been more resistant.

“Let me be crystal clear: When that anthem is being played, you are to stand and you are to be quiet,” Ryan Nemeth, the principal of Lely High School in Naples, Fla., told students in a video announcement, according to the Miami Herald. Students who don’t stand will be removed from games, the Herald reports.

And some school athletic directors have stirred up debate by passing around “reminders” about how student-athletes are to stand quietly during the playing of the national anthem.

Can schools discipline students for national-anthem protests?

Public schools can’t discipline students for silent acts of political protest that don’t disrupt the operations of a school, like kneeling for the anthem or refusing to say the Pledge of Allegiance, said LoMonte, of the Student Press Law Center. And educational leaders will miss out on learning opportunities if they first seek to end a protest rather than allowing students to learn from it, he said.

“The standard should never be: ‘What’s the worst thing we can do to kids and get away with it?’ ” LoMonte said in an interview. “The standard should be: ‘What’s the healthiest educational practice?’ Schools talk such a great game about wanting to produce civically engaged students. ... This is something schools should be embracing as a teaching opportunity.”

It’s not just a good educational practice to allow silent, unobtrusive acts of student speech; it’s also constitutionally mandated, LoMonte said.

While the U.S. Supreme Court has held that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” legal precedents show there are limits on schools’ ability to address speech with discipline.

In the 1943 case of West Virginia State Board of Education v. Barnette, the U.S. Supreme Court ruled that a school would violate the free-speech rights of its students who were Jehovah’s Witnesses if it forced them to say the Pledge of Allegiance.

“To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds,” Justice Robert Jackson wrote in his majority opinion.

Schools can’t require students to observe patriotic rituals in the classroom, and their authority to discipline them for such acts diminishes even more at an athletic event, where behavior like shirtless cheering is “a regular occurrence,” LoMonte said.

But what about suspending a privilege, like playing on a football team?

A school’s authority to discipline students for silent anthem protests isn’t heightened if those students are taking part in a privilege that isn’t granted to all students, like being members of an athletic team or club, LoMonte said.

Courts have held that public institutions can’t withhold privileges, like employment at a public agency, if employees exercise free-speech rights, like refusing to recite an anti-communist pledge, LoMonte said.

For example, a state’s department of motor vehicles can’t withhold a driver’s license from a blogger who says critical things about its operations, he said, arguing that the same principle is at work when schools seek to suspend students from sports teams for acts of speech.

“You can’t condition a privilege on forsaking your constitutional right any more than you can condition a right or a benefit,” LoMonte said.

Some school attorneys may point to a 2007 case in which a federal appeals court held that a Kentucky football coach could legally remove four players from his team after they circulated a petition complaining about him. But LoMonte said that situation is different because the coaches were responding not to the players’ speech but to their related actions that “sowed disunity on the football team.”

How can schools help students learn from the protests?

So, does that mean teachers and coaches can’t tell students why they think it’s important to stand for the national anthem?

No, LoMonte said, it just means they can’t suspend students or remove them from a team for choosing to sit or kneel.

“That’s a healthy discussion to have, but punishment short-circuits that,” LoMonte said.

At a time when schools are increasingly advocating for student voice and calling on students to think critically about current events, educators could use these conversations as a chance to help students grow and learn by asking them to discuss, write, or debate about why one may choose to stand or kneel during the anthem, the underlying racial issues behind the protests, or how the act could be perceived, he said.

A version of this article appeared in the October 05, 2016 edition of Education Week as Taking a Stand

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