Take a Knee…or Not – First Amendment and Student Sports
Since Colin Kaepernick, former quarterback for the San Francisco 49ers, chose to sit and later kneel during the playing of the National Anthem to protest his belief about racial injustice in the United States, it has only been a matter of time for high school football players to decide to sit or take a knee during the anthem. Because of a growing number of professional players standing with arms locked, sitting, taking a knee, or even remaining in the locker room through the national anthem, the national debate has grown over what can or should be done to those individuals. In Texas, two players from the Victory & Praise Christian Academy, a private school, were disciplined when one took a knee and the other raised a fist during the National Anthem. What does all of this have to do with the First Amendment and student sports?
Whether in solidarity with beliefs regarding racial injustice or merely in a desire to emulate pro football sports icons, public schools have been bombarded by coaches, parents, and community members in often raucous debate over what to do if a public school football player chooses to invoke his/her first amendment rights to free speech by sitting or taking a knee during the playing of the National Anthem. Here are the points to consider before members of your community push your District into taking steps that may not be defensible in 9th Circuit courts.
Is the student actually protesting something—whether racial inequality or a dress code–by taking a knee? If the student is actually protesting something and not just trying to emulate a professional athlete, then the student’s rights under the First Amendment take precedence and only a delineated exception or an overarching compelling state interest can override the student’s rights. For this reason, it would be a good idea to talk to the student athletes, perhaps even have a veteran’s group talk to them about the meaning of the National Anthem and what it means to them and then hear from the students about their thoughts—during that discussion, student concerns about racial inequality or other issues that the students are considering protesting might come out. As a side benefit, through mutual, respectful discussion, the students may determine that another form of civil disobedience and protest might be more effective and less divisive.
If the student is protesting something, can the school determine that the student must stand during the National Anthem? In West Virginia State Board of Education v. Barnette, the United States Supreme Court held that a school could not compel a student to salute the flag in violation of the student’s religious beliefs under the first amendment of the Constitution. The Court held, when weighing the student’s rights against those of the Board of Education in conducting the school, “The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”
Similarly, the student’s right to freedom of expression and freedom of association cannot be ignored in favor of the National Anthem. As was said in Tinker v. Des Moines Independent Community School District, the students’ silent wearing of armbands to protest the war in Vietnam, “entirely divorced from actually or potentially disruptive conduct by those participating in it…was closely akin to ‘pure speech’.” While the Court did recognize the need for schools to maintain authority over conduct in the schools, it found that in this instance the students were exercising their First Amendment rights through “silent, passive expression of opinion, unaccompanied by any disorder or disturbance” when the exercise of their rights ran straight into the school authorities’ rules.
A public school may be urged to give consideration to the fact that the students are participating in an extracurricular event and are doing so in school uniforms, representing the school district, and therefore prohibit the students from a silent protest by standing with linked arms, sitting or kneeling during the National Anthem. Participating in an extracurricular activity gives schools a great deal of leeway in curtailing the behavior of students, but even here, the students’ First Amendment rights are not necessarily left behind. In Hazelwood Sch. Dist. v. Kuhlmeier, the Court held that a school could refuse to print student stories regarding student pregnancy and divorce because the school newspaper was not an open forum and because the school was not required to lend its “name and resources to the dissemination of student expression.”
However, in Santa Fe Independent School Dist. v. Doe, the fact that the prayer offered before a football game occurred at an extracurricular event where individuals could choose to enter after the prayer was invoked or not attend at all was not a deterrent to the Court holding that the prayer was a violation of the Establishment Clause. The Court noted that the violation of the Establishment Clause was apparent in that the prayer was spoken over the public address system, by a speaker representing the student body, supervised by faculty, and pursuant to a school policy that encouraged public prayer and was therefore not considered to be “private speech” protected under the First Amendment.
In response to the argument that football was an extracurricular activity and that students did not have to attend or participate, the Court referred to Lee v. Weisman in holding, “To assert that high school students do not feel immense social pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is ‘formalistic in the extreme.’ We stressed in Lee the obvious observation that ‘adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.’ High school home football games are traditional gatherings of a school community; they bring together students and faculty as well as friends and family from years present and past to root for a common cause. Undoubtedly, the games are not important to some students, and they voluntarily choose not to attend. For many others, however, the choice between attending these games and avoiding personally offensive religious rituals is in no practical sense an easy one. The Constitution, moreover, demands that the school may not force this difficult choice upon these students for ‘[i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state sponsored religious practice.’ Even if we regard every high school student’s decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pre-game prayer has the improper effect of coercing those present to participate in an act of religious worship. For ‘the government may no more use social pressure to enforce orthodoxy than it may use more direct means.’ As in Lee, ‘[w]hat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.’ The constitutional command will not permit the District ‘to exact religious conformity from a student as the price’ of joining her classmates at a varsity football game.” [Internal citations deleted.]
Turning back to Tinker, the Court concurred with the court in Burnside v. Byars, “A student’s rights, therefore, do not embrace merely the classroom hours. When he 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.” [Emphasis added].
What are the exceptions? Ask “Is the speech protected as political speech or is it sexually explicit, vulgar or otherwise disruptive as in the student nomination speech in Bethel Sch. Dist. No. 403 v. Fraser?” “Does the speech promote the use of drugs (“Bong Hits 4 Jesus” on a banner held up during the Olympic torch run by students attending the run as part of school participation in the event) in violation of school policy as in Morse v. Frederick?” If the answer is no, then ask if there is a specific school policy that requires students to stand for the National Anthem and if that policy infringes upon a student’s viewpoint. Since Barnette already answered the question that a school rule to salute the flag could not be used to force a student to say the pledge in violation of the student’s right to practice his or her own religion, it would be difficult to say that the school could enforce a school rule to require participation in the National Anthem in violation of a student’s free speech rights to protest racial inequality.
The Tinker Court found that rather than there being any specific disruption or any proof that wearing the armbands would create disruption, “the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression.” Absent disruption, the Arizona public schools would have difficulty in convincing the 9th Circuit that a student silently protesting racial inequality by taking a knee, sitting, or linking arms with fellow players during the playing of the National Anthem is not exercising his or her First Amendment rights. Disciplining a student for exercising his or her rights by using a peaceful, silent means of protest could easily result in a lawsuit against the District for violating the student athlete’s Constitutional rights without showing an adequate compelling state interest for doing so.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding First Amendment and Student Sports, or other Education Law matters, please feel free to contact Candyce B. Pardee at 800.863.6718, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona with a branch office in Yuma, Arizona, and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.
 I was going to say “trump” the student’s rights, but decided the less said the better.
 319 U.S. 624 (1943)
 319 U.S. at 637.
 393 U.S. 503 (1969)
 393 U.S. at 508 (1968)
 484 U.S. 260 (1988)
 530 U.S. 290 (2000)
 530 U.S. at 309-310.
 505 U.S. 507 (1992)
 530 U.S. at 311-312.
 363 F2d 744 (5th Cir., 1966).
 393 U.S. at 512-13, citing Burnside v. Byars, 363 F2d at 749.
 478 U.S. 675 (1986)
 551 U.S. 393 (2007)
 393 U.S. at 510
 If coaches, parents, and/or members of the general public want the public school to fight for the right to discipline those students to the last drop of the school’s blood, the school might consider reviewing the 8th Circuit case of Lowry v. Watson Chapel School District, No. 07-3437 (2008) where the damages awarded for disciplining students for protesting the dress code by wearing black arm bands around their wrists was one dollar, but the attorney fees and costs were awarded against the District. The attorneys’ fees and costs were $45,601.54 with post-judgment interest–$37,500.00 for attorneys’ fees and $8,101.54 for out-of-pocket expenses.