The NFL famously banned “taking a knee” during the national anthem, but what about student athletes? First Amendment attorney Lee Rowland of the ACLU explores whether taking a knee is protected speech and shines some light on the free speech rights of public school students.
Lee Rowland is a senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. She has served as lead counsel in numerous federal First Amendment cases.
First Amendment rights summary and a look at the relevent caselaw governing "taking a knee" in school, provided by the ACLU of Washington: Taking A Knee: The Rights Of Students To Peaceful Protest
Lee Rowland: Colin Kaepernick famously took a knee in protest of racial injustice during his career with the NFL. Many public school students would also like to follow and do the same. Does the First Amendment protect those public students from retaliation or punishment by their school? My name is Lee Rowland, and I am a First Amendment attorney at the National ACLU.
After Colin Kaepernick took a knee in protest of racial injustice, we saw a landslide of other athletes following in his footsteps, or I guess in his knee caps. Public school students in particular only have a few opportunities to really express themselves at school and taking a knee non-disruptively, passionately, but passively at a sporting event seems a pretty good way to do it. However, we also heard about schools threatening students if they take a knee with retaliation or punishment if they don’t behave and put their hands on their hearts and behave in lockstep. Can the schools do that? The answer is absolutely not.
Amazingly, this might be one of the areas of the law where public school students might have more rights than an NFL player. Since 1943, the U.S. Supreme Court has ruled that schools cannot be in the business of forced patriotism. That is that the First Amendment prevents the government from forcing you to engaging in compelled speech, saluting the flag, or standing up for the national anthem. But public school students fortunately now have this 75 as of 2018, 75-year-old precedent behind them that says they have every right to refuse to stand for the pledge, to refuse to salute the flag, as long as they are doing it in a manner that doesn’t disrupt the learning process. Students who take a knee at a football game or another sports event aren’t harming anyone. They’re simply using that moment in time, a moment that the school has opened up for expressive behavior, right? They’re just hoping you do it in a patriotic sense, in a certain way. But because the school has opened up that forum, has created the space for people to express their patriotism under the First Amendment the school can’t then turn to a student who isn’t the very model of patriotism that the school wants and say you can’t take a knee. Unfortunately, that doesn’t mean that there aren’t local school districts who continue to violate these First Amendment rules.
The ACLU has had to go to court a number of times since 1943 to enforce the First Amendment rights of public school students and will continue to do that if schools violate students rights to take a knee. So the answer to the question, “Can public schools punish students for taking a knee during sporting events?” is no. And that’s true whether or not you’re in grade school, middle school, high school or college, so long as your school is a public school. My name is Lee Rowland. I am a First Amendment attorney here at the ACLU and you’re watching TalksOnLaw.