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Limits on Schools to Punish Student- Athletes for National Anthem Protests

By Lee Green, J.D. on April 05, 2017 hst Print

The Trickle-Down Effect
As with so many other behaviors exhibited by professional athletes that quickly filter down to college, high school and youth sports – including styles of on-field or on-court celebrations, demonstrations of disrespect to officials, mimicry of unsportsmanlike conduct during contests, displays of “trash talk” or “cheap shots” against opponents, arguments during contests with their own coaches, adoption of off-field or off-court conduct and attitudes, consumption of performance-enhancing drugs or supplements, and imitation of the consumer choices made by pros of shoes, apparel, beverages, technology and other goods – San Francisco 49ers quarterback Colin Kaepernick’s national anthem protests have trickled down to imitation by athletes at all levels of sport.

After he initiated his protests against social injustice during his team’s first preseason game in mid-August of 2016, first by refusing to stand for the national anthem and in later games by kneeling for the national anthem, hundreds of college, high school and youth sports athletes throughout the fall and winter engaged in similar political stands at the beginning of games. In early March of 2017, it was announced that Kaepernick, a free agent, would discontinue his protests next season, but the possibility nevertheless exists that other professional athletes may continue the demonstrations or that other types of protests may be initiated in support of other causes by pro players, resulting in a similar filter-down impact on sports at lower levels.

Recent National Anthem Protests in High SchoolSports
The starting quarterback at Doherty Memorial High School (Massachusetts) took a knee during the national anthem in support of the Black Lives Matter movement before his school’s opening home game of the 2016-17 season. The entire Minneapolis South High School (Minnesota) volleyball team knelt during the anthem before a home match to call attention to issues of social injustice in their hometown and nationwide. All but two members of the Woodrow Wilson High School (Camden, New Jersey) football team, along with the team’s head coach Preston Brown, knelt during the anthem before their first game of the year to protest the extreme economic inequality and other manifestations of racial discrimination in their hometown of Camden.

A football official took a knee before a game between Croatan High School in Newport, North Carolina, and Southwest High School in Jacksonville, North Carolina, to protest alleged police brutality against persons of color across the state. The cheerleading squad at Cornell High School in Coraopolis, Pennsylvania, knelt during the anthem at a home football game to express their concerns regarding social injustice in their hometown of Pittsburgh and nationwide. Football players at Auburn High School in Rockford, Illinois, knelt to call attention to racial injustice in their community and nationwide. Similar anthem protests took place before high school sports contests in Colorado, Nevada, California, Florida, Louisiana, Alabama, Ohio, Texas, Wisconsin, Kentucky, New York, Nebraska and Washington.

In most cases, the initial reaction by school district officials and community members was overwhelmingly negative, with calls for the student-athletes conducting the protests to be suspended or expelled from their teams, with the often-vitriolic opposition to the right of students to participate in such demonstrations focused on arguments that 1) freedom of speech guarantees should not be applied to students in the same way such rights operate for the general public and that courts should defer to the judgment of schools in matters of discipline; 2) schools have broad authority to punish student-athletes because their participation in sports is a privilege, not a constitutionally protected right; and 3) the offenders were violating the explicit language of their school’s athletic codes of conduct by engaging in behavior that purportedly disrespected the country, its flag, the military or the school in question.

In several of the situations, the backlash against anthem protests was so extreme as to include death threats against student-athletes, with one highly-publicized case in which the McKenzie (Alabama) High School public-address announcer demanded on-air that players who had participated in an anthem protest line up along the fence enclosing the field and be shot for disrespecting the military – a frightening proclamation by a district official in an era plagued by the specter of school shootings and an inimical statement given that our nation’s military has sacrificed so greatly throughout America’s history to protect and defend the U.S. Constitution, including the First Amendment guarantees of freedom of speech, expression and protest that were so emphasized by the Founding Fathers in the Bill of Rights.

Legal Standard #1
In the Supreme Court’s decision in Tinker v. Des Moines Independent Community School District (1969), a case in which students challenged their suspension from school for wearing black armbands to class as part of a peaceful, anti-Vietnam War protest that was just as controversial then as the national anthem protests are today, Justice Abe Fortas made the now-famous statement in the Court’s majority opinion that “students do not shed their constitutional rights at the schoolhouse gate” and concluded that schools do not have the authority to limit student speech unless it “materially and substantially disrupts the work and discipline of the school.” Since Tinker, the legal analysis related to whether a school has authority to sanction student speech has focused on evaluating whether a “substantial disruption” was a foreseeable result of the viewpoint advocated by the student or in-fact occurred because of the speech in question.

The issue in most situations therefore narrows to the determination as to what constitutes a “substantial” disruption. How extensive must the interference with the orderly administration of the school or athletics program be to satisfy the legal meaning of “substantial?” The Supreme Court has made it clear that a mere controversy regarding the content of speech, a moderate level of dissension regarding a stated viewpoint or a generalized buzz related to an opinion expressed by a speaker are not sufficient to be considered a “substantial” disruption. In Tinker, the Court explicitly addressed the issue of how much is enough to be considered “substantial”:

[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk....In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.

Supreme Court cases subsequent to Tinker clarified that in addition to restricting speech that causes a substantial disruption, schools may also limit on-campus student speech that is lewd or profane, speech that is part of the school curriculum (such as a student newspaper), speech that advocates drug use by students, and speech that constitutes a true threat against the school community (such as communications implying the possibility of a school shooting).

The national anthem protests that have taken place at high school sports events would not appear to fit into any of these categories of permissible restrictions on student speech. Despite opposition by many community members to the methodology of the demonstrations and disagreement by some regarding the legitimacy of the issues targeted by the protests, there have been no reported instances of anthem demonstrations that have resulted in interference rising to the level of “substantial” as set forth in the Tinker case.

Legal Standard #2
The second legal standard often asserted by school officials to support their right to punish student-athletes for objectionable forms of speech, expression or protest is the longstanding principle that participation in school sports programs and other extracurricular activities is a privilege, not a constitutionally-protected property right that would entitle the student to greater due process protections. However, the “privilege-not-a-right” principle is not one that applies in free speech cases – in any speech, expression or protest related judicial challenge, the courts apply a higher standard of review referred to as “strict scrutiny.” In Tinker, the Supreme Court stated that:

The principle of these cases [on student free speech] is not confined to the supervised and ordained discussion which takes place in the classroom ... A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field [emphasis added], 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 interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others. The constitutional right at issue is freedom of expression, not that of participation in extracurricular activities. That there is no constitutional right to participate in athletics or other extracurricular activities may be pertinent to an analysis of other sorts of constitutional claims, such as a Due Process claim, a Privileges and Immunities claim, or an Equal Protection claim, but not to a freedom of expression claim. What this means is that a student cannot be punished with a ban from extracurricular activities for non-disruptive speech.

Legal Standard #3
The third argument offered by schools is that they have broad authority to sanction a student for violating the explicit language of his or her school’s athletic code of conduct. However, in free speech cases, courts typically refuse to uphold handbook limitations on student expression on the grounds that such codes of conduct are overly broad and vague. In a 2011 decision, T.V. & M.K. v. Smith Green Community School Corporation, a federal court in Indiana ruled that the punishment imposed on two high school volleyball players for inappropriate postings on social media violated the girls’ free speech rights. The court stated:

Applying these principles to the provision at hand, it is obvious that out-of-school conduct that brings discredit or dishonor upon the student or the school is a standard that reaches a whole host of acts for which no First Amendment protection could be claimed. The broad spectrum of criminal activity springs immediately to mind by way of example. But the standard may also reach a similar variety of speech or expressive conduct that would be protected by the First Amendment. Examples could include marching for or against certain political or social causes, or publicly speaking out on topics school authorities deem taboo. And much of such speech or expressive conduct, as in this case, would not meet Tinker’s substantial disruption standard so as to render it subject to school discipline. Because the breadth of the standard reaches a substantial amount of constitutionally protected conduct, I conclude as a matter of law that the challenged language is impermissibly overbroad and that the Student Handbook provision on conduct
“out of school that brings discredit or dishonor upon the student or the school” is impermissibly overbroad and vague under constitutional standards.

In sum, with regard to student-athlete national anthem protests, school and athletics administrators might be best served by using such demonstrations as a teachable moment to discuss the underlying issues and encourage lifelong political advocacy by students. And even those school officials who disagree with the protests might take note of the following quote. Commenting on his advocacy of freedom of speech and promoting the “marketplace of ideas” concept he first posited in the Supreme Court’s decision in Abrams v. United States (1919), Justice Oliver Wendell Holmes Jr. once stated to a newspaper reporter that “every American believes in free speech unless it’s speech he doesn’t agree with.”