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NFL quarterback Colin Kaepernick recently sparked controversy by kneeling during the pregame playing of the national anthem in order to protest police shootings of African-Americans. His protest sparked something of a movement; many professional and student-athletes have followed his example in protests of their own.

Public school students around the country—football players in Colorado and Washington, volleyball players in Texas, and band members in California—have also begun kneeling during the national anthem. While none of these students were punished, some schools are impermissibly attempting to prevent these types of protest. In September 2016, NCAC wrote in opposition to Collier County’s (FL) adoption of a policy requiring students to obtain written parental permission before kneeling during the anthem.

Like other forms of political speech, kneeling during the national anthem and sitting during the Pledge of Allegiance are protected by the First Amendment. In Tinker v. Des Moines (1969), the Supreme Court ruled that a school district had violated students’ rights by punishing them for wearing black armbands in protest of the Vietnam War. The ruling held that students have a constitutional right to participate in non-disruptive protests during the school day. This means that public school officials cannot retaliate against or discipline students who choose to participate in these forms of protest unless the protests cause, or are reasonably expected to cause, the disruption of school events.

Even before the Supreme Court ruled in Tinker that students’ political speech is protected unless it is disruptive, it had decided that schools cannot force students to stand for, recite, or otherwise participate in the Pledge. In the 1943 case West Virginia v. Barnette, the Court noted that a compulsory flag salute such as the Pledge is tantamount to forcing students to declare a belief: “to sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.” In other words, just as the First Amendment protects your right to speak, it protects your right to express your beliefs by remaining silent. It does not matter why you choose to sit—maybe you are protesting police shootings, the war in Afghanistan, or Obamacare—you have the right to sit as long as you are quiet, respectful, and do not disrupt the Pledge.

But school administrators are not always aware of that right. In September 2016, for instance, several schools made headlines by wrongly punishing students who sat during the Pledge of Allegiance. In Chicago, a teacher attempted to physically pull a student out of his chair, and in California, a teacher lowered a student’s participation grade. In both cases, however, the school district admitted that its teachers violated students’ First Amendment rights. The teacher in Chicago was suspended, and the student in California was given the option to transfer to a different class.

The national anthem is no different from the Pledge of Allegiance. The Supreme Court’s ruling in Barnette applies to any activity that conveys the personal endorsement of a political message or ideological viewpoint. Public schools cannot force students to stand for the national anthem, nor can they punish them for kneeling. Private schools, in contrast, have the right to punish students for their political speech. However, it is educationally unwise to do so. Non-disruptive speech on controversial issues benefits all students by encouraging healthy debate.

Protests at Public Universities

Students at public colleges have far greater legal protections for their speech than do students at high schools. Moreover, as the “quntessential marketplace of ideas” colleges value academic freedom as key in the search for truth and knowledge. Free expression is thus vital to the mission of a university.

Despite strong First Amendment protections and academic freedom principles national anthem protests have been subject to attempts of suppression and retaliation. While controversy around the protests is to be expected and has led to reasoned debate on most campuses, some public officials and college administrators have opposed those peaceful protests and called for penalties for the students protesting.

Timeline of Events

Students who have sat or kneeled during the Pledge of Allegiance and national anthem have drawn considerable scrutiny and, in some cases, been at the center of controversies. Here are just a few examples of incidents that occurred after Mr. Kaepernick’s protest.

Click here for a timeline of equivalent protests at universities.

 

2017

June 2 —Represented by the ACLU, the mother of an 8-year-old boy at Fuqua Elementary School in Terre Haute, Indiana, filed a federal lawsuit alleging her son was forced to recite the Pledge of Allegiance.  According to the lawsuit, the then-first grader remained seated and quiet rather than recite the pledge, but was removed from the classroom and escorted to the school principal’s office, where he was forced to recite it.

September 22 — At a campaign rally in Huntsville, Alabama, President Trump criticized NFL players who protest during the national anthem as “disrespectful” and called for them to be fired. He continued his censure of football protesters in a series of tweets throughout the week.  In response, dozens of NFL team owners and their players joined in protesting during anthem recitals in the following week’s games.

September 27 —  Inspired by the national conversation that ensued after Trump’s tweet, the Superintendent of Bossier Parish school district in Benton, Louisiana issued the statement to over 30 schools in his district requiring all students to stand “in a show of respect” during the anthem’s recital.  Following the district-wide statement on “proper national anthem decorum,”  Benton’s Parkway High School Principal wrote to student athletes and parents threatening any student who failed to comply with reduced playing time and ultimately, dismissal from the team.

September 29 —  A church-based football program at Victory and Praise Christian Academy in Texas banned players from protesting during the national anthem.  Two Texas students persisted in exercising their right to protest, kneeling during the anthem recital at the next game. They explained their intent was not to disrespect, but to draw attention to incidents of police brutality and racial injustice. Still, immediately after their protest, their coach (a former Marine and pastor) kicked them off the team.

October 5 — The school board for Stuart Public Schools in Pittsburg County, Oklahoma unanimously passed a policy requiring “all students, student-athletes and spectators” to stand during the playing of the national anthem at school-sponsored events, “without any gestures of demonstration or protest.”

 

2016

August 30 —An African-American student at Eisenhower High School in Chicago claimed that his teacher tried to physically pull him out of his chair when he sat during the Pledge of Allegiance. The principal defended the student’s right to protest, and the teacher was suspended.

September 9—A football player in Worcester, Massachusetts, knelt during the national anthem to promote Black Lives Matter. He was later suspended for one day. His suspension was ultimately repealed by his school district.

September 15—Reports emerged that a teacher in Lake County, California, lowered the participation grade of a Native American student who sat during the Pledge of Allegiance. The student told media she had been sitting for years and had never encountered a problem before. The district superintendent told NCAC that the student accepted an offer to transfer to another class and that all district employees were sent an email reminding them of free speech policies and student rights.

September 14—A principal in Collier County, Florida told students that they were required to stand during the national anthem. The District later called the incident a misunderstanding and asserted that the principal was only disciplining students who were disrupting the anthem by laughing and joking. The following week, the District adopted a new policy that requires student-athletes who wish to kneel during the national anthem to obtain parental permission to do so. On September 27 2016, NCAC sent a letter to the District opposing the policy.

September 14—Pearland Independent School District (Texas) issued a statement in response to an incident when a fifth-grader who remained seated during the Pledge of Allegiance was yelled at by a coach and sent to the principal’s office. According to the student, the principal phoned her mother and called the student “disgusting.” The statement affirmed students’ right to sit during the Pledge.

September 16—Orange County Public Schools (Florida) reversed a short-lived policy that required students to obtain parental permission to kneel during the national anthem at sporting events. It issued a statement clarifying that students do not need parental permission to protest.

September 20—The South Jersey Times Editorial Board defended the protests of student-athletes across New Jersey. It noted that private Catholic schools in the Diocese of Camden has informed football players that they will be suspended from the team if they do not stand for the national anthem.

September 22—A member of the Santa Monica Malibu Unified School District Board (California) created controversy by kneeling during the Pledge of Allegiance. One critic later claimed that elected officials “do not have standing to protest against the government” and that the board member was setting “a bad example for schoolchildren.”

September 27—Police officers in Jefferson Parish, Louisiana, announced that they would not sign up to work volunteer shifts at a high school where football players knelt during the national anthem. According to the sheriff, the officers are offended by Mr. Kaepernick’s statement that “cops are getting paid leave for killing people” and believe the students are expressing similar anti-police sentiments.

September 27—An eight-year-old student in Midland, Texas, was allegedly sent home from school for kneeling during the Pledge of Allegiance. The student says he kneeled as “justice for black people getting murdered.”

September 30—A student at Bartlett Yancey High School in North Carolina was sent to the assistant principle’s office for remaining seated during the Pledge of Allegiance. The student later wrote a Facebook post claiming she was “very respectful,” and the district superintendent said the assistant principal simply sent the student back to class after asking her to explain her reasons for declining to stand.

September 30—The Scotch Plains-Fanwood Board of Education (New Jersey) proposed a policy that requires all students to salute the flag and recite the Pledge of Allegiance. Although the policy exempts conscientious objectors and children of foreign diplomats, it requires them to “show full respect to the flag while the pledge is being given.”

September 30—Cheerleaders at Cornell High School in western Pennsylvania kneeled during the national anthem while World War II veterans presented the flag. The backlash led to hundreds of angry, threatening emails and phone calls to the local school district, which opted to reschedule the school’s homecoming game and forbid students, alumni, and members of the public from attending; only the parents of football players may attend.

October 2—Local media reported that police are investigating death threats made against a Massachusetts high school football player who knelt during the national anthem before a September 23 game. On September 26, another student reportedly threatened to “lynch” the player and use him for “target practice.”

December 2—According to local media, a student was forced to write an extra essay after he sat during the Pledge of Allegiance. The school district stated that the teacher violated policy.

At Universities

September 20—Belmont University (Tennessee) expelled a student who made social media posts that referred to kneeling football players as “piece of shit niggers” who needed “a bullet in their head.” Belmont is a private university and is legally entitled to punish students for constitutionally protected speech.

September 23—After hearing about a planned protest, officials at Eastern Michigan University kept the football team and band off the field during the national anthem. The University claimed it was concerned about the safety of “everyone involved.”

September 24—Three football players at the University of Nebraska knelt during the national anthem. Nebraska Governor Pete Ricketts called their actions “disgraceful” and “disrespectful.” He later agreed to meet with one of the athletes to discuss the protest.

October 1—Some band members at East Carolina University knelt while playing the national anthem. Other members refused to play the anthem at all. University administrators said future protests of this sort “will not be tolerated” because of the “unique privilege and responsibility” of band members. An ESPN Radio affiliate announced that it would not broadcast an upcoming game.

October 1—Protestors at Texas Christian University were booed for remaining seated during the national anthem. The protestors have met with the university’s chancellor and plan to publicly release a list of demands.

November 6—The women’s basketball team at the University of Arkansas kneeled during the national anthem, prompting backlash from Republican legislators who threatened to cut the University’s budget. The students eventually announced they would no longer conduct the protest and would instread try to engage the community about the issues.