Originally appeared in the CAS Weekly Newsletter.
Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
It is bad enough that I can’t watch my beloved NFL games without being confronted with political protests. Now, as the assistant principal in a high school, I am getting panicky emails from teachers and coaches asking me what to do if the students in their charge “take a knee” during the recitation of the Pledge of Allegiance or the playing of the National Anthem. I know what I would like to say, but I don’t want to get sued for giving bad advice.
My sense of it is that teachers should let students take a knee during the Pledge because of some case I read somewhere. But I think that team sports stands on a different footing and that coaches can require that students all stand respectfully, hand over heart, while the National Anthem is played. Did I get that right?
Playing the Lawyer
Legal Mailbag agrees with your advice regarding students in school, but whether you got it right regarding the players will depend on the facts. The coach would have to show that the players’ actions caused a material disruption or substantial interference with the educational process, and I have my doubts whether that would be possible.
Two cases decided long ago frame the analysis here. In 1943, at the height of the Second World War, the United States Supreme Court decided whether officials in West Virginia had the right expel a student for refusing (on religious grounds) to recite the Pledge of Allegiance. Notwithstanding the fact that the country was at war and patriotism was high, in a decision that reflects the best values of this country, the Court held that requiring a student to pledge allegiance violates the United States Constitution, stating:
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.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
Twenty-six years later, the Court decided that school officials in Iowa violated the free speech rights of a student, Mary Beth Tinker, by suspending her (and her brother and a friend) for wearing black armbands to school to protest the war in Viet Nam. In so doing, the Court stated 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,” and it announced the rule that guides us today. Students have a right of free expression under the First Amendment unless school officials reasonably forecast substantial disruption or material interference with the educational process or invasion of the rights of others. Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).
Applying these principles to the first situation you confront – students engaging in symbolic speech by “taking a knee” during the Pledge – it is clear that school officials may not regulate such speech unless they reasonably forecast substantial disruption to or material interference with the educational process. In these days when students and others are quite willing to share their thoughts and views, it is hard to imagine that a student’s taking a knee during the Pledge would cause such disruption or interference.
The analysis is similar with students on sports teams is similar, but the factual context is different. There, the students are participating as part of a team, and uniformity and “teamwork” are expected. For example, student athletes cannot express themselves by wearing other than the standard-issue jerseys. Accordingly, in considering a free speech claim in the context of school sports, one court held that school officials did not violate the free speech rights of students by dismissing them from the team after they circulated a petition to get their coach fired. Lowery v. Euverhard, 497 F.3d 584 (6th Cir. 2007). Significantly, the court applied the Tinker test, but it found that circulating the petition under the special circumstances of team sports could be viewed as substantially disruptive, given the need for team unity and the polarizing effect that such a petition could have.
Applying these principles to the question you pose, without more I would still advise coaches to be tolerant of such student expression. To be sure, there is a greater likelihood in the context of an athletic team for such expression to be a substantial disruption or material interference of the team’s functioning. However, the Tinker standard requires a “reasonable forecast” of such disruption. Absent some special circumstances (and sitting in the comfort of my chair at home), I cannot predict that such symbolic speech by one or more student athletes would be such a disruption that would justify restricting such student speech.