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鈥� 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.
鈥淚 am not going to stand up to show pride in a flag for a country that oppresses black people and people of color,鈥� he said in an August postgame interview. 鈥淭o me, this is bigger than football and it would be selfish on my part to look the other way.鈥�
Kaepernick鈥檚 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鈥檚 honor band, knelt while playing the anthem before an Oakland A鈥檚 game.
How are schools reacting to students鈥� protests?
The Oakland school district retweeted supportive messages and news stories about the students鈥� protests on its official Twitter feed. In other parts of the country, coaches and teachers have joined students in kneeling during the anthem.
鈥淓verybody wants to talk about how this is disrespectful to the American flag,鈥� Garfield, Wash., football coach Joey Thomas told the Associated Press. 鈥淭hat鈥檚 a smokescreen. How about we talk about the issues people are kneeling and fighting for?鈥�
Around the country, dozens of local news stories tell of students taking part in similar protests. While some educational leaders have supported their students鈥� quiet acts of defiance, others have been more resistant.
鈥淟et me be crystal clear: When that anthem is being played, you are to stand and you are to be quiet,鈥� Ryan Nemeth, the principal of Lely High School in Naples, Fla., told students in a video announcement, according to the Miami Herald. 69传媒 who don鈥檛 stand will be removed from games, the Herald reports.
And some school athletic directors have stirred up debate by passing around 鈥渞eminders鈥� 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鈥檛 discipline students for silent acts of political protest that don鈥檛 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.
鈥淭he standard should never be: 鈥榃hat鈥檚 the worst thing we can do to kids and get away with it?鈥� 鈥� LoMonte said in an interview. 鈥淭he standard should be: 鈥榃hat鈥檚 the healthiest educational practice?鈥� 69传媒 talk such a great game about wanting to produce civically engaged students. ... This is something schools should be embracing as a teaching opportunity.鈥�
It鈥檚 not just a good educational practice to allow silent, unobtrusive acts of student speech; it鈥檚 also constitutionally mandated, LoMonte said.
While the U.S. Supreme Court has held that 鈥渢he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,鈥� legal precedents show there are limits on schools鈥� 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鈥檚 Witnesses if it forced them to say the Pledge of Allegiance.
鈥淭o 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,鈥� Justice Robert Jackson wrote in his majority opinion.
69传媒 can鈥檛 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 鈥渁 regular occurrence,鈥� LoMonte said.
But what about suspending a privilege, like playing on a football team?
A school鈥檚 authority to discipline students for silent anthem protests isn鈥檛 heightened if those students are taking part in a privilege that isn鈥檛 granted to all students, like being members of an athletic team or club, LoMonte said.
Courts have held that public institutions can鈥檛 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鈥檚 department of motor vehicles can鈥檛 withhold a driver鈥檚 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.
鈥淵ou can鈥檛 condition a privilege on forsaking your constitutional right any more than you can condition a right or a benefit,鈥� 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鈥� speech but to their related actions that 鈥渟owed disunity on the football team.鈥�
How can schools help students learn from the protests?
So, does that mean teachers and coaches can鈥檛 tell students why they think it鈥檚 important to stand for the national anthem?
No, LoMonte said, it just means they can鈥檛 suspend students or remove them from a team for choosing to sit or kneel.
鈥淭hat鈥檚 a healthy discussion to have, but punishment short-circuits that,鈥� 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.
