Can High School Athletes Take a Knee?

When the Friday night lights are turned on in high school football stadiums around the country, you can bet students, parents and staff will be asking themselves, “What should we do if some players decide to take a knee during the National Anthem?”

Most probably, the right answer is, they should do nothing. Student athletes have the right to this kind of protest, according to an article in Education Week. Students cannot be forced to participate in what the school considers acts of patriotism. (I would argue that taking a knee to protest injustice and to urge the country to be a better place is a patriotic act, but that’s a different issue.)

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 student, a Jehovah’s Witness, if it forced him 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,” Frank LoMonte, the former executive director of the Student Press Law Center, told me last year.

And school’s authority to discipline students for silent anthem protests isn’t heightened if those students are taking part in a privilege, like being members of a football team, he 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 anti-communist pledge, he said, arguing that the precedent applies to student athletes.

“You can’t condition a privilege on forsaking your constitutional right any more than you can condition a right or a benefit,” LoMonte said.

This isn’t to say that schools can’t discipline, suspend or expel students for taking a knee. Schools take disciplinary actions against students for questionable reasons all the time. It’s just that they’re very likely to get their asses sued by a local lawyer working pro bono, or if they really get lucky, the ACLU may step in to make a Federal Case out of it—literally. Chances are good, the schools will lose.

A Personal Note: In June, 1954, at President Eisenhower’s urging, Congress added the phrase “under God” to the Pledge of Allegiance. My family discussed the change. We’re Jewish, and my parents understood the underlying antisemitism in this country on a personal level. Sometimes people’s dislike of Jews was spoken, and sometimes it was clear but unspoken. Sometimes Jews were denied opportunities simply because they were Jewish. Far worse, my parents saw the virulent antisemitism in Europe. Their parents escaped the pogroms in Eastern Europe by emigrating to the U.S. Only nine years before the change in the Pledge, Germany surrendered, and the Nazis’ attempted genocide of the Jewish people was halted at six million souls. My parents, as liberals and ACLU members, disliked the government mandating any form of religious observance for political and constitutional reasons, but they also feared what an imposition of religion by the government could mean to Jews.

At the junior high I attended, the entire student body gathered on an outside concrete area to the side of the basketball courts before school, looked up at the flag and recited the Pledge of Allegiance. When I returned to school in September, I stood silently, arms at my side. I can’t remember if my parents mentioned that was a possibility or I did it on my own, but I know they didn’t urge me to remain silent.

From that day until today, I have stood respectfully during the Pledge of Allegiance, but I have never uttered a word or put my hand on my heart. That includes my 30-plus years as a public school teacher where every assembly and pep rally began with the Pledge. I always expected someone would question me about it. I wondered if an administrator would tell me my job was in jeopardy if I continued my silence and I might be forced to have my day in court. I’m still surprised that no one ever brought it up, no student, fellow teacher or administrator. It may be as simple as, for thirty years, everyone was too busy looking at the flag and reciting the Pledge to notice.

This article appears in Sep 21-27, 2017.