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Two universities’ responses to cheerleader protests demonstrate need for principled student-athlete speech policies

In late August, Southern Illinois University rescinded a restrictive student-athlete speech policy it passed in response to its cheerleaders kneeling during a national anthem before a football game. About a week later, cheerleaders at Kennesaw State University sued their school for prohibiting them from engaging in the same expressive conduct. This lawsuit, and SIU’s waffling over its student-athlete speech policy, are just two examples of universities struggling to forge workable solutions to issues regarding national anthem protests and student-athlete expression.

At SIU in 2017, three cheerleaders knelt while the national anthem played at a college football game. SIU Chancellor Carlo Montemagno initially supported the protestors’ right to free speech, stating: “We may not agree with how these students are choosing to make their statements, but we must morally and legally protect their right to make them.” However, in 2018, SIU barred student-athletes from engaging in expressive activities when on the field in uniform, amending its Student Athlete Code of Conduct to read:

Members of the department including student athletes cheerleaders and spirit members must remain neutral on any issue political in nature when wearing SIU official uniforms and when competing/performing in official department of athletics events and activities. . . . Any display (verbal or non-verbal) of activism (either for or against) a political issue will not be tolerated and may result in dismissal from the program.

SIU rescinded the policy after several free speech groups questioned the wisdom and legality of the policy at a public university bound by the First Amendment. An SIU athletic director claimed that “restrict[ing] the free speech rights of [SIU] students . . . was never [the university’s] intent” and that it will work with student-athletes to craft a better policy.

About a week later, cheerleaders at Kennesaw State University filed suit against their school, alleging that Georgia government officials told KSU to prohibit the cheerleaders’ continued kneeling during the national anthem. According to the complaint, KSU administrators were caught between the pressure from state lawmakers to stop the protests and an outpouring of support for the cheerleaders by the KSU student body. These cheerleaders accused KSU of eventually bowing to government demands to prevent them from taking the field at all while the national anthem played at university football games.

These two events, in addition to the many colleges that have experienced national anthem protests preceding athletic events, demonstrate the divergent responses to student-athlete expression. Schools caught between the conflicting demands of their many stakeholders may feel forced to make potentially unconstitutional decisions on this issue. While these institutions undoubtedly must have the leeway to create successful educational and athletic programs, such control need not come at the expense of student-athlete free speech rights.

Fortunately, FIRE’s Statement on College Student-Athletes’ Free Speech Rights strikes this balance. Informed by the law on student-athlete expression, our statement calls on universities to protect student-athlete expression so long as it does not disrupt the proper functioning of the university’s athletic programs. It offers colleges a compromise between a team’s need for order and a student’s right to free expression — a solution we’d be happy to help educational leaders implement at their institutions.

While many universities struggle with lawsuits, negative press coverage, and ongoing controversy over how they handle the surge in national anthem protests, FIRE stands ready to help administrators pave a principled path forward in this area.

FIRE, a First Amendment charity, effectively and decisively defends the fundamental rights of tens of thousands of students and faculty members on our nation’s campuses while simultaneously reaching millions on and off campus through education, outreach, and college reform efforts.

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