Key Takeaways
- Since West Virginia v. Barnette in 1943, public schools cannot force students to salute the flag or recite the Pledge, and courts have applied that rule to standing for the anthem.
- A public school student who kneels quietly during the anthem at a game is engaging in protected expression unless it substantially disrupts school activities.
- These protections apply to public schools and colleges, not private ones, and courts sometimes give coaches more room to manage team conduct than other school officials.
After Colin Kaepernick took a knee during the national anthem to protest racial injustice, student athletes across the country followed his lead. Some schools responded with threats of punishment. Can a public school bench, suspend, or discipline a student for kneeling?
In this TalksOnLaw Brief, Lee Rowland, Executive Director of the National Coalition Against Censorship and a longtime First Amendment litigator, explains why public school students may have more protection here than professional football players.
No Forced Patriotism
Rowland calls kneeling a passionate but passive way to express a view, and one of the few opportunities students have to make a statement at school. She explains that since 1943, in West Virginia State Board of Education v. Barnette, the Supreme Court has held that schools cannot be in the business of forced patriotism. The First Amendment prevents the government from compelling speech, whether that means saluting the flag, reciting the Pledge, or, as courts have since applied the principle, standing for the anthem. Students may decline, she says, as long as they do so in a way that does not disrupt learning.
A Forum the School Opened
Students who kneel at a game, in Rowland's view, are not harming anyone. The school has set aside that moment for expression, hoping students will express patriotism in a particular way. Having opened that space, she argues, the school cannot single out a student who expresses a different view and forbid it. She also contrasts students with NFL players, whose employer is a private league not bound by the First Amendment.
Enforcing the Rule
Rowland acknowledges that some school districts still violate these rules, and that civil liberties groups have repeatedly gone to court to enforce students' rights. Her bottom line is that public schools cannot punish students for kneeling during sporting events, from grade school through college, as long as the school is public.
What to Know Now
The core principles remain in place. Under Tinker v. Des Moines, public schools may restrict student expression only when it would substantially disrupt school activities or invade others' rights. In 2017, a federal court in California applied Barnette and Tinker to block a district rule that barred athletes from kneeling. In Mahanoy Area School District v. B.L. (2021), the Supreme Court sided with a cheerleader disciplined for an off-campus social media post, confirming that student speech rights reach extracurricular participants. In Kennedy v. Bremerton School District (2022), the Court protected a coach's personal prayer at midfield, a reminder that expression at school games raises questions for staff as well as students.
Schools have tools, too. Courts have sometimes given coaches leeway to require team discipline and to act against conduct that undermines the team, so the setting and manner of a protest matter. Private schools are not bound by the First Amendment, though state law or school policy may offer protection. For public school students who kneel quietly, the constitutional answer Rowland gives still holds.
