#TakeAKnee: Guidance for Principals on Free Speech at Athletic and Other School Events 

by Malina Piontek, Attorney, LLC

Last year, Colin Kaepernick took a knee instead of standing during the National Anthem to protest social injustice and police brutality.  Other professional athletes followed suit and began taking a knee during the Anthem. The President tweeted on how players should stand during the anthem and the protests took off. Coaches and even owners have joined in.  Now, cameras are focused on athletes during the playing of the National Anthem, giving viewers an immediate look at who’s protesting and who’s not.

The practice is trickling down from the pros, to colleges and to high schools. In one situation, two high school players for a Christian high school were dismissed from the game after they knelt and raised a first during the Anthem. In another, school leadership has threatened to discipline student athletes who do not stand as is expected of them during the Anthem. Without a doubt, the movement will continue to spread. To help you be prepared should an issue arise at your school, this article discusses free speech implications of students and staff engaging in similar protests at public school functions.

The First Amendment

The First Amendment of the United States Constitution provides that “Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech; . . .”  The First Amendment applies to all levels of government, including public schools. However, free speech rights are slightly reduced because students are minors; adults are school employees; and a public learning institution requires a peaceful environment to fulfill its mission to educate. In short, neither students nor employees “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate;” but, if there is a compelling reason, their speech may be stopped and they may be sanctioned for their speech.

Public School Students

Although the courts have permitted school officials to limit the rights of students under some circumstances, the courts have also recognized that students - like all citizens - are guaranteed the rights protected by the First Amendment. Therefore, when students engage in speech, including symbolic speech such as kneeling in protest or refusing to salute the flag, principals must be cautious in their response lest they be accused of trampling a student’s First Amendment rights.

The first case in which the Supreme Court extended First Amendment protection to students attending public schools was West Virginia v. Barnette, which involved students refusing to salute the flag. In conformance with a West Virginia statute, the school board adopted a resolution ordering that the salute of the flag become a regular part of the public schools. Several students who were Jehovah’s Witnesses refused to salute the flag for religious reasons. School officials punished the students by expelling them until they complied. The students then sued, claiming a violation of their First Amendment rights.

At the time that the students sued, Supreme Court precedent painted a bleak picture for them. Just a few years earlier, the Court had ruled in favor of a similar compulsory flag-salute law in Minersville School District v. Gobitis. As the Court stated in that ruling, "national unity is the basis of national security."

However, the High Court reversed itself in Barnette, holding that the free speech and free exercise of religion provisions of the First Amendment guarantee the right of students to be excused from the flag salute on grounds of conscience.  Justice Robert Jackson said that the Supreme Court must ensure "scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." The Court then warned of the dangers of coercion by government:

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.

In 1969, the Supreme Court again applied the First Amendment to public school students in Tinker v. Des Moines Indep. Comm. Sch. Dist., a case involving students wearing arm bands to school to protest the Vietnam War.  Tinker stands for the proposition that schools may limit student expression if it materially and substantially interferes with the operations of the school. Actual disruption does not have to occur; rather, predicted substantial and material disruption resulting from a student's expression is enough for a school to prohibit the student from engaging in such expression.

Over time courts have held students cannot be punished with a ban from extracurricular activities for non-disruptive speech, as such action would violate the First Amendment. (I encourage you to take a look at T.V. ex rel. B.V. v. Smith-Green Comm. Sch. Corp., if for no other reason than pure entertainment.) 

Applying Tinker to a school athletic setting in which student athletes or spectators take a knee or otherwise refuse to participate in the National Anthem, it is unlikely that such action would create a substantial and material disruption. Therefore, pursuing sanctions against students for such conduct is likely to violate the First Amendment. 

Coaches, Teachers and Other School Employees

Over the years the courts have ruled that school employees are not always free to express their opinions and beliefs. However, employees cannot be disciplined or suffer negative consequences for speaking out on matters of “public concern.” On the other hand, schools can take action when employees go public with strictly personal concerns.

The U.S. Supreme Court decision in the 1968 case Pickering v. Board of Education, held that freedom of speech, while not absolute, gives public employees Constitutional protection if they are speaking about issues of a public nature, rather than those things about which they have a personal stake. In Pickering, the Court overturned a school district’s decision to fire a teacher for commenting on school expenditures through letters in a local newspaper, finding that school expenditures are a matter of public concern.

As the court articulated in Pickering, a balance must be struck between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.  This is not an easy task. Based upon this balance, however, it is commonly understood that school employees can be disciplined based on their expression (like publicly criticizing supervisors) if the school believes that it will impede the employee’s ability to perform assigned duties, or the speech will undermine supervisory authority, disrupt the school, or destroy close working relationships.  

In 2006, the Court refined the public employee First Amendment analysis when it ruled in Garcetti v. Ceballosthat when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from discipline.

In sum, in a school setting, when confronted with an employee speech case, the court’s analysis goes like this:

Is the statement made pursuant to the employee’s official duties? If so, the employee may be subject to disciplinary consequences.

Is the speech a matter of public concern?  If not, the employee may be subject to disciplinary consequences.

If so, was the employee’s speech outweighed by the school’s interest in promoting efficiency in the delivery of educational services?

It is important to note that the Court has said that it is not necessary to allow events to unfold to the extent that there is a disruption of the office, inefficiency in operations or destruction of relationships before action may be taken. As with students, if a disruption to the educational enterprise is foreseeable, action may be taken to circumvent the disruption.

Applying the caselaw to a public school athletic activity, the following are likely conclusions under a First Amendment analysis:

A head coach, assistant coach, volunteer coach, or other athletic employee of the school district (collectively “coaches) who kneels or otherwise fails to participate in the National Anthem would be engaging in speech while performing his/her job duties. Coaches’ status as school employees engaged in their job duties would be enhanced by the fact that they would likely be wearing school clothing or equipment that demarcate them as school employees. Community members will undoubtedly view them as district employees engaged in the performance of their jobs. Therefore, it is highly likely that the coaches are speaking as employees, not as citizens, and their speech would not be protected by the First Amendment.

Staff members who attend a sporting event and engage in some form of speech, such as raising a fist during the National Anthem, may or may not be engaging in speech while performing their job duties. It gets tricky, and each staff member’s presence at an event must be analyzed to determine whether s/he is there for his/her job, or there purely as a member of the public. The higher up the food chain, so to speak, the more likely the community will view the person as acting in his/her capacity as a school employee. For example, if a principal attends a game dressed in school colors and is assisting with crowd control, it will be hard to argue that his/her speech is not made while performing his/her duties. On the other hand, if a cafeteria worker attends a game in his/her street clothes, and has no authority over students or others at the game, it will be hard to argue that the speech is made while performing duties for the school. In short, the higher on the school district’s org chart, the more the community will view the actions to be that of the school district.

Even if a staff member is found to have been speaking as a citizen on a matter of public concern, it must then be asked whether the school's interests in effectively providing services to the public outweigh the staff member's interests in his/her speech. Unless a staff member's act of kneeling or otherwise protesting results in substantial disruption to the school's operations, a school is going to have a tough time limiting the employee's First Amendment rights.  

Take-Aways from #TakeAKnee

As is the case with many controversial topics, an ounce of prevention is worth a pound of cure.  School leaders want to have a safe and welcoming environment for participants and spectators alike. It is an opportunity to promote the school to the community. It is therefore prudent to have a plan in place in anticipation of protests at an athletic or other school event. Work with your superintendent ahead of time – s/he may want to involve legal counsel to advise on First Amendment issues that may arise.

The #TakeAKnee movement is a sensitive topic that can raise strong emotions across all spectrum of opinions. Use the current social movement as a means of teaching.  Have an open conversation about it ahead of time. Schools should initiate conversations with coaches and other staff who lead or participate in public events so that they in turn can have informed conversations with their students. The conversations should address why some people are taking a knee and protesting, and why others feel strongly that those actions are disrespectful. Ask students to let their staff leaders know ahead of time whether they intend to take a knee or otherwise engage in symbolic speech during the National Anthem.

For students, as long as there is not a significant disruption, their First Amendment rights should be respected.  Let them know that the school values peaceful individual expression and students taking a stand for what they believe in, so long as it is not disruptive or disrespectful of others. As educators, these events can be used as opportunities to help students understand the value of honoring different perspectives.

Have staff members reflect on how they will or will not be in a position to improperly influence students and advise that they be respectful of all students’ beliefs that are expressed in appropriate ways.  Staff members should also reflect on the level of their position in the organization as to whether their actions will be viewed as speaking for the school district.

This article was written by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider. You may direct your Level I call-in questions to Malina at 608-497-3037. The views expressed herein are exclusively those of Ms. Piontek. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice. You are encouraged to contact your district legal counsel should you require legal advice regarding this topic. 

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