FIRE releases statement on student-athlete speech rights in wake of favorable court decision

By January 5, 2018

In an important decision for student-athlete rights, a federal court in California has upheld the right of a public high school athlete to kneel during the national anthem. The late-December decision is the first to result from the many student-athletes engaging in similar protests across the United States.

The case involved a California high school football and basketball player who took a knee during the national anthem to express his “personal feelings and concern about racial injustice in our country,” a symbolic protest popularized by former National Football League quarterback Colin Kaepernick. The student staged his protest for weeks without incident until students of another high school hurled racial slurs at him, threatened to force him to stand, and sprayed a water bottle at several students after an away football game. This caused the San Pasqual Valley Unified School District to enact a policy punishing student-athletes who “engage in political activism [including but not limited to kneeling, sitting, or other forms of political protest during the playing or singing of the National Anthem] . . . including peaceful political protest” during school sporting events.

The court granted a preliminary injunction prohibiting the school from enforcing the policy, holding that it had no authority to restrict peaceful political protest under the First Amendment. Citing Tinker v. Des Moines Independent Community School District (1969), a landmark case establishing that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the court reasoned that the school could only punish speech that causes or is likely to cause a substantial disruption to school activities — a standard it found was not satisfied in this situation.

Additionally, the court relied on West Virginia State Board of Education v. Barnette (1943), which upheld the right of grade school students to refuse to say the Pledge of Allegiance and salute the American flag. In that decision, Justice Robert H. Jackson (after whom my fellowship is named) chastised the school for compelling patriotism:

Compulsory unification of opinion achieves only the unanimity of the graveyard. . . . 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.

In finding for the students, the court invoked Barnette and several other cases establishing that schools are generally powerless to “force students into patriotic expression under the threat of retaliation.”  

As the first published court opinion on a student-athlete’s First Amendment right to kneel during the national anthem, the case is a decisive victory for students’ rights and free speech. High school speech cases set the baseline for First Amendment freedoms in higher education, as college students are adults with greater rights than their younger counterparts. The decision should prompt other educational institutions to recognize their student-athletes’ right to peacefully protest at athletic functions, and give them pause about requiring students generally to make pledges about their ideological loyalties.

Striking the balance between protecting student-athlete speech and ensuring the proper functioning of athletic programs is no easy task, which is why FIRE has developed a set of principles on this issue to guide colleges. In our newly-issued Statement on College Student-Athletes’ Free Speech Rights, education policymakers can find guidelines on the most pressing issues concerning student-athlete speech. Our goal is to offer principles to help universities craft student-athlete speech policies that preserve expressive freedoms while allowing for the discipline needed to run a team.

As demonstrated by the widespread coverage of this federal court decision, schools that unduly restrict the expressive rights of student-athletes face both courtroom losses and public embarrassment. Rather than risk a judge striking down their policies via expensive and damaging litigation, we encourage colleges to do right by their student-athletes by considering our proposals. A university’s obligation to protect free speech demands nothing less.

As more student-athletes seek to express themselves, there will undoubtedly be more lawsuits against schools like San Pasqual Valley Unified School District that seek to limit students’ free speech rights. Colleges can get ahead of the curve by recognizing that athletes are students first and by protecting their rights accordingly. As always, we stand ready to help, and we hope our statement on this issue — informed by the very same law as this decision — is a useful place to start.