Education Week - October 5, 2016 - 12

SNAPSHOT

TAKING
A STAND

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?

(Yong Kim/The Philadelphia Inquirer via AP)

Student Voice

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. BY EVIE BLAD

How did these protests start?

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,"

12 | EDUCATION WEEK | October 5, 2016 | www.edweek.org

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 anticommunist 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.

Edwin Lopez (No. 1) stands while most of his teammates kneel during the national anthem
before Woodrow Wilson High School's home game against Highland High School in Camden,
N.J., last month. Colin Kaepernick's protest against social injustices has sparked debate on
a national level about patriotism and free speech.

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Education Week - October 5, 2016

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