Districts take anthem protests in stride

by Eric D. Randall

On Board Online • October 9, 2017

By Eric D. Randall

As taking-a-knee protests during the national anthem spread to high school football games in New York this fall, school attorneys have been advising school districts that they are a form of constitutionally protected free speech.

While Catholic schools have warned players they could face disciplinary action if they kneel during the anthem before sporting events, public school leaders praised peaceful forms of protest by students. They have described the protests as teachable moments calling attention to issues that are polarizing people across the nation.

After a freshman who plays for Jamestown Public Schools knelt before a game in Dunkirk on Sept 28, Superintendent Bret Apthorpe said: "Jamestown coaches and teachers will use this opportunity for all students in our district to learn more about patriotism, sacrifice, civil rights, advocacy and freedom of speech. This event is not about consequences for students, and there will be no consequences for this student, but rather it is about a learning moment for all students."

Niskayuna Superintendent Cosimo Tangorra Jr. expressed similar sentiments after six football players and a cheerleader knelt during the anthem on the same day before a game in the Capital District. "It must be clear to all that the students who chose to kneel broke no school rule and will not be penalized in any way," Tangorra said. "As an educational institution, it is our responsibility to provide a venue for students to learn about, debate and understand current events."

Players at the high school, college and professional level who have "taken a knee" have said they want to call attention to unjust killings of black Americans by police.

President Donald Trump has called for owners of professional football teams to fire players who fail to stand during the National Anthem, saying it's disrespectful to military veterans and "our heritage."

If students mimic protests by athletes such as former San Francisco 49ers quarterback Colin Kaepernick, school attorneys say it would be unlawful to require them to stand under threat of discipline or other negative consequence.

"The courts have long held that students do not shed their constitutional rights at the school house door," said Kathy Ahearn, president of the New York State Association of School Attorneys and a partner with the Guercio & Guercio law firm, which represents Niskayuna.

"It is settled law that a school cannot discipline a student for expressing a political belief unless that expression materially and substantially disrupts the educational process," said Ahearn, who formerly served as counsel to the State Education Department. "The act of peacefully taking a knee during the anthem at a football game is political speech that is protected by the First Amendment. An attempt by a school district to discipline a student for such action would likely be met with a lawsuit for violation of that student's First Amendment rights."

Attorneys at several other law firms polled by On Board gave the same advice. "Compelling them to stand could be viewed as tantamount to requiring them to salute the flag," said Robert H. Cohen, a partner with Lamb & Barnosky.

Both the U.S. Supreme Court and the Second Circuit U.S. Court of Appeals, which has jurisdiction over New York State, have ruled that a school district cannot discipline students who refuse to participate in patriotic rituals such as saying the pledge of allegiance, saluting the flag or standing for the National Anthem.

Jay Worona, NYSSBA's deputy executive director and general counsel, said he agrees that disciplining students for taking a knee would invite a legal challenge and that Jamestown and Niskayuna are providing examples of positive responses.

On the other hand, almost all of the available case law involves student behavior during the regular school day, so a long line of decisions that protect students' right of free expression might not fully apply to student-athletes who are given the privilege of representing their districts in athletic competitions, Worona said.

He noted that courts have viewed participation in interscholastic sports as a privilege, which is why schools are permitted to require student-athletes to participate in drug testing programs even if there is no reason to suspect an individual student-athlete of using drugs.

The idea that students who participate in extracurricular activities have diminished free speech rights also arose in 2010 in the case of a Texas cheerleader who refused to cheer for a basketball player whom she claimed had assaulted her sexually.

In Doe v. Silsbee Independent School District, the U.S. Court of Appeals for the Fifth Circuit noted that the student participated voluntarily on the cheering squad. That made her made her "a mouthpiece through which (the district) could disseminate speech, namely, support for its athletic teams."

The court found that the girl's refusal to cheer "constituted substantial interference with the work of the school." It ruled that the school district didn't violate the cheerleader's constitutional rights when it removed her from the cheering squad.

The Fifth Circuit has jurisdiction in Texas, Louisiana and Mississippi, only. A court with jurisdiction over New York might be influenced by this decision but would not be bound by it, Worona said.

In the landmark case of Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court ruled in 1969 that "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." But under that ruling and other federal and state court rulings, school officials can lawfully prevent students from expressing themselves or subject students to discipline for expressing themselves if the speech:

In a "school sponsored" medium, such as a school newspaper, censorship is permissible if related to legitimate pedagogical concerns and not "viewpoint discrimination" that targets only certain political views.

Schools can also discipline students for speech that constitutes bullying under the state Dignity for All Students Act or violates school policies related to state or federal antidiscrimination laws.

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