H.S. Athlete Likely Has Right to Kneel During National Anthem

So holds a federal district court, in granting a temporary restraining order in V.A. v. San Pasqual Valley Unified School District.

|The Volokh Conspiracy |


V.A., a high school senior who plays football and basketball on the San Pasqual Valley High School teams, decided to kneel during the National Anthem at two recent high school games. The School District responded a policy stating,

Students and coaches shall stand and remove hats/helmets and remain standing during the playing or singing of the national anthem. Kneeling, sitting or similar forms of political protest are not permitted during athletic events at any home or away games. Violations may result in removal from the team and subsequent teams during the school year.

V.A. sought a temporary restraining order to bar the policy from being enforced at two basketball games, Tuesday night and today; and on Tuesday the court granted the order, which will last until the preliminary injunction hearing next Tuesday. The school defendants declined to file papers or appear at the oral argument opposing the TRO (though they will presumably respond as to the longer-term preliminary injunction request); and the court agreed with V.A. and issued the order:

Based on the papers filed by Plaintiff, and without the benefit of an opposition, at this stage of the proceedings, the Court finds that Plaintiff is likely to succeed on the merits. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624. 633, 642 ("[T]he action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.").

A few thoughts on why this is actually a complicated First Amendment question, though I think that on balance the court is likely right:

[1.] Generally speaking, a school can't require students to participate in patriotic observances, or otherwise compel speech that's not part of a normal academic curriculum. The Supreme Court held that as to the flag salute in 1943, and the same is true as to the anthem. And this extends to compelling symbolic expression, such as respectfully standing, and not just verbal expression.

[2.] Could the school defend its policy by arguing that students who participate in optional school programs, such as sports, band, theater, student government, and the like, can be required to say certain things as part of that participation?

[A.] That must be true in some measure, I think, in part because the "curriculum" there may be broader than in the normal school: For instance, if students act in the school play, they can be required to read certain lines; if students decide to be cheerleaders, they have to cheer the way the school tells them; if a school has red-white-and-blue sports uniforms, I don't think that students can insist on wearing a uniform that looks different than everyone else's. (The Court has never discussed the line between within-academic-curriculum speech that's routinely compelled in school—e.g., required exam answers, essays, class participation, and the like—and outside-academic-curriculum speech, such as the Pledge of Allegiance, but presumably some such line must exist.) Nonetheless, I don't think this extends to athletes standing for the National Anthem, though it would extend to band members being required to play the National Anthem.

[B.] Relatedly, I think a school can generally insist that people who are participating in school-organized events, and who are representing the school in front of a school-supplied audience, not hijack the occasion as a means of expressing their own views (see, e.g., this incident). A school could, for instance, bar basketball players from attaching slogans of their own to their jerseys.

But here, the school isn't just barring V.A. from symbolically kneeling—it's requiring him to symbolically stand (as a gesture of respect for the anthem or for the nation). Though his speech does in measure take over part of the ceremony for his message, it's as an attempt to avoid the school taking over his presence; he just wants to abstain from that.

This suggests, by the way, that a policy saying "You can stay off the field during the Anthem if you'd like, but if you want to be on the field, you can't symbolically kneel or otherwise express yourself" might be permissible. (The school district policy apparently allows this for religious objectors, though not for ideological ones.)

[C.] The school could also argue that the school can impose any requirements on students who volunteer for sports teams (setting aside religious speech requirements that are barred by the Esatblishment Clause). There's some language along those lines as to the Fourth Amendment and sports teams in Vernonia School Dist. 47J v. Action (1995):

By choosing to "go out for the team," [student athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. In Vernonia's public schools, they must submit to a preseason physical exam (James testified that his included the giving of a urine sample), they must acquire adequate insurance coverage or sign an insurance waiver, maintain a minimum grade point average, and comply with any "rules of conduct, dress, training hours and related matters as may be established for each sport by the head coach and athletic director with the principal's approval." Somewhat like adults who choose to participate in a "closely regulated industry," students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy.

Some lower court cases, such as Lowery v. Euverard (6th Cir. 2007), suggest the same may apply to free speech.

[D.] Cases such as Lowery also suggest that a school might eject a student from an optional program for speech that substantially interferes with the smooth function of the program (applying the substantial disruption test from Tinker v. Des Moines Indep. School Dist. (1969)) even if the speech doesn't substantially interfere with classmates' education more broadly and thus doesn't warrant broader discipline—for instance, if the speech simply undermines esprit de corps within a team, or undermine's the coach's authority.

This having been said, I'm skeptical that this should apply to compelling people to participate in patriotic ceremonies, or other ideological ceremonies. Requiring you, as a condition of a valuable government benefit, to say or symbolically convey messages that you don't want to convey (and that aren't plausibly seen as part of the relevant curriculum or of the government's own speech), is a serious intrusion into the "freedom of mind" that the Court has tried to protect through its compelled speech doctrine. Saying that you can't say something within a program still leaves you to free to say that outside the program—but requiring you to say something within a program gives you no way not to speak (short of giving up participating in the program).

[3.] V.A.'s complaint suggests that the policy was implemented in part because of hostile reactions from students at another school:

25. On Friday, October 6, 2017, the San Pasqual Valley High School football team played Mayer High School in Mayer, Arizona. This was the homecoming game for Mayer High School. When the national anthem was played at the beginning of the football game, Plaintiff silently kneeled as he had done at the prior football game on September 29, 2017. Three members of the San Pasqual cheerleading squad also remained seated for the national anthem as it was played. This silent expressive conduct by SPVHS students occurred without contemporaneous incident. There was no immediate noticeable reaction to their conduct by anyone at that time or at any point during the football game.

26. On information and belief, it was not until the football game was over, that a group of 5-6 Mayer students approached the San Pasqual cheerleading coach, Adina A., who is also Plaintiff's mother, as she and two cheerleaders were about to enter the designated changing area after the game. The San Pasqual football players had already entered the changing area. As Adina A. and the two cheerleaders were approaching the door, the Mayer students asked Adina A. "where is number 7 or was it 77" "we want number 7" "we are going to drag him, pull him onto our field and force him to stand" "you don't take a knee here, this is America, you don't disrespect our field". Adina stood in front of the door of the changing area and instructed the group of students to move along.

The Mayer students started saying things like "go back across the border" to which one of the cheerleaders responded "we are not from Mexico, we are Native". The Mayer students then stated "well, we stole your land" "this is America" and began mocking their Native American culture through war cry. At the time this was happening, Adina A. was the only adult present. There were no school security or other adults in the immediate vicinity. Once the two cheerleaders were inside of the changing area, Adina A. left to find another adult. As she was looking for another adult, another group of students joined and others, including a Mayer parent, started chiming in saying "this is America" and making comments such as "you guys got slaughtered, you must be used to that."

27. On information and belief, Adina A. was ultimately able to speak with an assistant athletic director from Mayer and explain the situation. When she told him what was happening and described the offending students and parent, he responded that he knew who she was referring to and was not surprised. By that time, the San Pasqual football players and cheerleaders had already left the changing area and were standing in line to get onto their school bus. As the San Pasqual students were getting onto the bus, Mayer students were lining up alongside the gymnasium for their homecoming dance.

A group of Mayer students who were standing in line sprayed water towards the San Pasqual students as they were getting onto the bus and the water sprayed onto one of the San Pasqual cheerleaders. The students who sprayed the water were the same students who had made the offensive comments earlier. Other than Mayer students throwing water as the San Pasqual students were boarding the school bus, there was no report of physical violence engaged in by anyone at this Mayer post-game incident….

29. On information and belief, Principal Pechtl had at some point on or before October 9, 2017 received a communication from officials at Mayer High School apologizing for the incident….

38. Superintendent Fox sent a … letter dated October 12, 2017 describing the Compulsory Anthem Policy including the disciplinary sanctions for violators. The letter indicated that political protests during the pre-game anthem "were not well-received" by the Mayer crowd. It also stated that the District had contacted Mayer High School as well as the officials at AIA, Arizona Interscholastic Association, to notify them of the October 6, 2017 incident and that San Pasqual will no longer allow Mayer High School to be on their playing schedule.

K-12 schools can restrict student speech on the grounds that it poses a substantial risk of material disruption; the Court so said in Tinker, even as it held that student speech is protected when such a risk is absent. The Ninth Circuit (where this case is being litigated) held in Dariano v. Morgan Hill Unified School Dist. (9th Cir. 2014) that even ordinary students' wearing American flag T-shirts to school on Cinco de Mayo could be banned if there's evidence that this could lead to fights. Would the same apply if there was enough evidence that prominent refusals to participate in patriotic observances could lead to fights (here, fights with students from other schools)? Maybe, though on the record it appears that the altercations were more limited and less serious than in Dariano.

[4.] Finally, California statutes protect K-12 student speech rights more than the First Amendment does. Cal. Educ Code § 48907(a) provides,

Pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.

And Cal. Educ Code § 48950 provides,

A school district operating one or more high schools … shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.

(There's an exception for "reasonable time, place, and manner regulations," but that's a term of art that refers to content-neutral restrictions—I think this restriction would qualify as content-based, much as bans on flagburning have been seen as content-based: It regulates conduct precisely because of the message it sends.)

The statutes seem to have been designed with an eye towards normal school attendance, rather than with specialized school programs. (A different subparagraph of § 48907 sets up a special rule for official student newspapers.) At the same time, it doesn't exclude such school programs—perhaps, then, student athletes do have a statutory right to wear buttons while playing (except perhaps to the extent that they are physical safety hazards), and likewise a statutory right to kneel during the anthem (even if they're given the option of waiting off the field instead of standing for the anthem). Similarly, exclusion from a sports team for refusing to comply with the rules may well be seen as "disciplinary sanctions."

[5.] We should be seeing the school's defense of its policy (unless it chooses to give up) next week, and a more detailed opinion from the court about the preliminary injunction some time after that.