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As Students Join National Anthem Protests, How Should Schools Respond?

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A silent act of protest started by San Francisco 49ers quarterback Colin Kaepernick has spread beyond the NFL and onto the sidelines of many high schools in recent weeks as young players join in. 

Kaepernick, troubled by police treatment of black Americans, has stirred up both admiration and controversy for his decision to kneel during the national anthem rather than stand with his hand over his heart.

And, as news stories from around the country show, some educators have been troubled by student athletes' decisions to follow his lead.

"Let me be crystal clear: When that anthem is being played, you are to stand and you are to be quiet," Ryan Nemeth, principal of Lely High School in Naples, Fla., told students in a video announcement, according to the Miami Herald. Students who don't stand will be removed from games, the Herald reports.

Is this the right response? How should schools handle the tension between a collective act of patriotism and their students' acts of personal expression?

It reminds me of my own experiences as a senior in high school following the terrorist attacks on September 11, 2001. I don't recall if my school said the Pledge of Allegiance daily before the attacks, but there was a special significance to saying it after. But in our small Kansas town where almost everyone was Mennonite, some of my classmates chose to stand silently rather than say the pledge. It was an expression of their pacifist faith, which holds that their highest allegiance should be to God.

Perhaps because my classmates had been doing this all through elementary, middle, and high school, or perhaps because many of my teachers were Mennonite as well, I don't recall anyone facing discipline or reprimand for their choice not to say the pledge. But I do remember classroom conversations about their choice that stretched my mind and my worldview.

Discipline for National Anthem Protests?

Could schools today have similar teachable moments when their players decide to protest?

Yes, says Frank LoMonte, the executive director of the Student Press Law Center, which advocates for students' First Amendment rights. But first, it's important for public schools to recognize that they can't discipline students for silent acts of political protest, he said.

"The standard should never be: 'What's the worst thing we can do to kids and get away with it?' " LoMonte said in an interview. "The standard should be: 'What's the healthiest educational practice?' Schools talk such a great game about wanting to produce civically engaged students...This is something schools should be embracing as a teaching opportunity."

It's not just that schools should not discipline students for their national anthem protests, it's that they cannot discipline them, he said. Turns out there was some legal precedent for the way my high school handled my peers' refusal to say the pledge.

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," LoMonte said.

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.

Teachable Moments in National Anthem Protests

So, does that mean teachers and coaches can't tell students why they think it's important to stand for the national anthem? No, LoMonte said, it just means they can't suspend a student or remove them from a team for choosing to sit or kneel.

At a time when schools are increasingly advocating for student voice and calling on students to think critically about current events, educators could use these conversations as a chance to help students grow and learn, he said.

Schools could choose to respond to student protests in many constructive ways, including:

  • Asking students to write essays about why they would or wouldn't choose to protest as a professional athlete.
  • Inviting students to debate their positions on the issue.
  • Using the protests as a jumping off point for larger conversations about racial justice.
  • Asking students to write about all of the ways the act could be perceived as an exercise in seeing others' points of view.

What do you think? How should schools respond to students' national anthem protests?

Photo: Woodrow Wilson High School player Edwin Lopez, center, stands while some of his teammates kneel as the national anthem is played before a high school football game on Sept. 10 in Camden, N.J. --Yong Kim/The Philadelphia Inquirer via AP

Further reading on race, policing, and schools:

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