High School Colin Kaepernicks: You Can Take a Knee During National Anthem

Punishing high school players violates the First Amendment, experts say

Public high schools are sending conflicting messages to their football players and cheerleaders about possible punishment for refusing to stand during the pre-game national anthem. One Louisiana school district threatened to suspend protesting players from the team, while a New Jersey high school said the students have the First Amendment right to protest.

Which is correct?

“The U.S. Supreme Court made clear over 70 years ago that students could not be compelled to salute the flag. Likewise, under the First Amendment, public school students cannot be compelled to stand for the national anthem,” Jean-Paul Jassy, who teaches First Amendment law at the University of Southern California, told TheWrap.

A public school that punishes a student for a silent protest could face a lawsuit for violating the student’s First Amendment rights, Harvard constitutional law professor Laurence Tribe told TheWrap.

“Any student punished by a public school or other governmental entity for taking a knee could challenge the punishment successfully in court, probably with the assistance, pro bono, of the local chapter of the ACLU,” Tribe said.

Silent protests by football players and cheerleader during the national anthem have started to spread to high schools after National Football League players followed the lead of former San Francisco 49ers quarterback Colin Kaepernick. He and 49ers starter Eric Reid were the first to kneel during the anthem last year to protest racial inequality and police brutality against African Americans.

Public high schools are government agencies, so they are restricted on how much they can punish students for exercising their the First Amendment right to free speech.

The American Civil Liberties Union has already cautioned one public school district against disciplining its football students for engaging in Kaepernick-like protests. On Sept. 28, the Louisiana ACLU issued a public warning to the Bossier Parish School District and one of its high schools in suburban Shreveport, Louisiana to drop its plan to suspend football players from the team if they refuse to stand for the national anthem.

Marjorie R. Esman, executive director of the Louisiana ACLU, told TheWrap that public school districts must abide by a 1943 Supreme Court decision, West Virginia Board of Education v. Barnette. In that decision, the court declared that the First Amendment gives public school students the right “to refuse to engage in rote acts of patriotism that violate their beliefs, whatever the reason,” she said.

Political protests on public school grounds are protected by the First Amendment so long as they are peaceful and do “not create a substantial disruption to the school or violate the rights of other students,” University of Minnesota journalism professor Jane Kirtley told TheWrap. For example, the Supreme Court said that a public school could not punish students for wearing black arm bands to silently protest the Vietnam War, Kirtley said.

The Louisiana school district that threatened to punish football players for protesting said it could do so because playing a sport “is a privilege, not a right.”

Louisiana ACLU executive director Esman diagrees. “Extracurricular activities cannot be offered with the condition that the student sacrifice a fundamental constitutional right in order to take part,” she said.

Frank LoMonte, former executive director of the Student Law Press Center and now Director of the Brechner Center for Freedom of Information at University of Florida, told TheWrap that the Supreme Court would reject the argument by the Louisiana district. “Surely your First Amendment rights have to be greater on the sidelines of a football field than inside a classroom,” he said.

The ACLU would approve of the positive reaction to protests by the Monroe High School in New Brunswick, New Jersey  “We have to follow what is in the (school district’s) policy,” Monroe High School athletics director Greg Beyer said, “and pretty much the policy is if a kid doesn’t want to stand for the Pledge of Allegiance, that’s his constitutional right, so we have to handle it (taking a knee during the playing of the anthem) the same exact way.”

In contrast, private and religious schools are not bound by the First Amendment because they are not government agencies. That means there is little legal recourse for the two football players who were kicked off their church-run football team in Texas for taking a knee and raising a fist during the anthem on Sept. 29.