The silent protest during the playing of the national anthem that started with former NFL quarterback Colin Kaepernick has spread not only around the National Football League, but, lately, to high schools, middle schools and even elementary schools around the country.
Kaepernick began the protest – first sitting, then kneeling as the national anthem was being played – during pre-season play last year, saying he was doing it because he is bothered by police treatment of blacks in America.
While Kaepernick’s actions went unnoticed for the first few games, his protests eventually gained press coverage, and he was joined by other professional athletes in similar protests around the country.
The protests are now being mimicked by a younger audience, as public school officials in districts around the United States are seeing protests by students.
One recent protest was carried out by a six-year-old, and reports of protests and suspensions have grown in the past few weeks.
Earlier this month in Texas, a high school student was suspended for refusing to stand during the Pledge of Allegiance. The Windfern High School (Houston) student, India Landry, was told she had to stand for the pledge, and when she did not, she was told by the school’s principal that she was suspended.
Landry has filed suit against the school.
A Florida first-grader decided to take a knee during the Pledge of Allegiance in his classroom last month and was reprimanded in front of other students in the class, according to his mother.
The increase in incidents has led some to ask what right students have when it comes to displays of patriotism at school. Can students at a public school refuse to stand for the national anthem or sit through the pledge?
Yes, they can.
In 1943, the U.S. Supreme Court held in West Virginia State Board of Education v. Barnette, that forcing a student to recite the Pledge of Allegiance, then punishing them if they did not, violated First Amendment rights to free speech and the due process clause of the Fourteenth Amendment.
The ruling came in a case brought by students who were Jehovah’s Witnesses. They argued that pledging allegiance to the United States would violate the tenets of their faith.
The Justices ruled that it did not matter if a person refused to recite the pledge because of religious beliefs or some other standard because no U.S. official could compel a person to “confess .. their faith” about anything.
Writing the majority opinion for the court, Justice Robert H. Jackson said, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
So, if public schools cannot ban students from sitting or kneeling during the anthem or pledge, can they discipline them if they do protest?
No, they cannot, according to Frank LoMonte, the former executive director of the Student Press Law Center.
It does not matter if a student is part of a sports team or some other school group when he or she decides to protest, LoMonte told the website Education Week. Public institutions cannot withhold privileges when employees exercise free speech rights and that right extends to students.
"You can't condition a privilege on forsaking your constitutional right any more than you can condition a right or a benefit," LoMonte explained.
While some school districts have continued to tell students they must stand for the pledge or the anthem, others have made it clear they cannot ban such protests, nor will they punish students who do choose to protest by kneeling.
Twelve football players from Laguna Creek (California) High School knelt during the national anthem before a football game at their school in September. While the school administration received complaints from some parents, the Elk Grove Unified School District issued a statement saying that it would not discipline the students, citing their right to exercise their “freedom of speech and expression protected by the First Amendment of the United States Constitution."
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