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Following the model of San Francisco 49ers’ quarterback Colin Kaepernick, students in some school districts across the nation have been protesting perceived inequalities in American society by kneeling or sitting during the playing of the National Anthem at the beginning of athletic events. If this happens in your school district, how should administrators react?

Absent special circumstances, school officials are legally obligated to tolerate such protests. Forbidding such behavior as a matter of school policy or imposing discipline on a student who engages in such a protest would likely be viewed by courts as a violation of the student’s constitutional right to free speech, unless the words or actions substantially interfere with the normal functioning of the school or present a clear and present danger. However, this does not mean that students cannot be taught about patriotic customs and encouraged to participate.

School officials can find guidance in several court decisions that explain a student’s right to free expression and describe the kind of circumstances that can justify intervention by school officials. The U.S. Supreme Court tackled the issue in a 1943 ruling involving two sisters who were expelled from a school near Charleston, West Virginia after they refused to salute the American flag and say the Pledge of Allegiance. Raised as Jehovah’s Witnesses, the students said doing so would be “bowing down” to a “graven image.”

In West Virginia State Bd. of Educ. v. Barnette, the court ruled 6-3 that refusing to salute a flag was a form of free speech that signified disagreement with the political ideas that the flag represents. Censoring or suppressing opinion may be tolerated “only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish,” according to the majority opinion by Justice Robert Jackson.

To do otherwise would violate the individual’s First Amendment rights. Free public education must “not be partisan or enemy of any class, creed, party, or faction,” the court ruled. Expressing a partisan view, even an unpatriotic one, must be tolerated. Accordingly, compelling a student to salute the flag or say the Pledge (or imposing disciplinary action against students for failing to do so) would be unconstitutional.

The U.S. Court of Appeals for the Second Circuit, which has jurisdiction in New York, ruled similarly in a 1973 case involving a protest that mirrored Kaepernick’s. In Goetz v. Ansell, a high school senior refused to stand for the Pledge of Allegiance, reasoning that “there [isn’t] liberty and justice for all in the United States.” The school district required the student to leave the room during the recitation of the Pledge; the student, however, maintained that he had a right to silently sit down in protest. The Second Circuit held in favor of the student, explaining, “[W]e do not believe that a silent, non-disruptive expression of belief by sitting down may similarly be prohibited.”

The Second Circuit expressly disagreed with the student’s sentiment, but upheld his right to express it. Similarly, Supreme Court Justice Ruth Bader Ginsburg recently made headlines across the nation when she told Yahoo News’ Katie Couric that she thought Kaepernick’s actions, while a form of protected free speech, have been “dumb and disrespectful.” Ginsburg later apologized for her comments, calling them “inappropriately dismissive and harsh.”

The boundaries of student free speech have been mapped by the U.S. Supreme Court on numerous occasions. Most notably, in 1969 the court held in Tinker v. Des Moines Indep. Cnty. Sch. Dist. that symbolic actions, such as wearing a black armband at school in protest of the Vietnam War, are a form of protected speech. When analyzing the authority of a school to restrict student free speech, schools are to use the “substantial disruption” test that was established in this case. In other words, restrictions on student speech will be upheld only when such restrictions are “necessary to avoid material and substantial interference with schoolwork or discipline . . . .” The implication of Tinker and other rulings is that forms of student expression such as kneeling or sitting during the National Anthem may be regulated only to the extent that such expression may generate a material and substantial interference in a school environment or present some kind of danger. Disruption at this level rarely occurs, making disciplinary action against students in these situations difficult to justify under this constitutional standard.

At the same time, schools in New York State are required to provide instruction regarding patriotism, citizenship, and human rights issues, the Declaration of Independence and the Constitution, and respect for the flag, its display and use. They may also teach students that federal law states that when the national anthem is played: “[a]ll persons present should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart . . . .” (See 36 U.S.C. Section 301.) Schools may encourage students to engage in this conduct. However, compelling compliance or imposing disciplinary action for refusing to do so (whether by an athletic coach, teacher, superintendent, etc.) would be unconstitutional, absent any significant disruption or danger.

The Barnette decision remains instructive: “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.” And as the Second Circuit said in 1973, the best we can do is to prove to students that we respect their rights, so as to urge respect of the country. As the court in Goetz explained, “While we do not share plaintiff’s resistance to pledging allegiance to this nation, his reservations of belief must be protected. In time, perhaps, he will recognize that such protection is sound ground for a firmer trust in his country.”

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Catherine E. Muskin of Ferrara Fiorenza P.C.

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