Free Speech

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

A Federal district court grants a preliminary injunction in V.A. v. San Pasqual Valley Unified School District.

|The Volokh Conspiracy |

I blogged about this case last week, when a temporary restraining order was issued; yesterday, the court issued a longer-term preliminary injunction, with a longer discussion—here's the key analysis:

Plaintiff is a high school senior at San Pasqual Valley High School …, who played or plays on the School's varsity football and basketball teams…. During the recent 2017 football season, Plaintiff began to silently kneel during the National Anthem. Plaintiff's decision to kneel was aimed at expressing his "personal feelings and concern about racial injustice in our country." He stated that he wanted to provide a reminder that "racial injustice in our country" exists, "which we must not tolerate." For the upcoming basketball season and other sport seasons, Plaintiff intends to kneel during the National Anthem when it is played.

At a home football game on September 29, 2017, Plaintiff kneeled during the National Anthem, and did so peacefully and without incident. The following week, at an away game played in Mayer, AZ, Plaintiff kneeled again during the National Anthem, and again did so peacefully. However, after the game was played, a few students from Mayer High School approached some of the School's students, made racial slurs, threatened to force Plaintiff to stand, and sprayed a water bottle at the School's students, getting one cheerleader wet. In reaction to this incident, the School's principal, Defendant Darrell Pechtl, spoke with Plaintiff's mother, and he expressed that he thought Plaintiff's actions could be seen as "disrespectful" to the other school….

Following the October 6, 2017 football game, the District's superintendent, Defendant Rauna Fox, states that she received feedback from community members, parents, and staff regarding how the District would address the Mayer High School students' behavior. She also received concerns regarding how the District would "ensure safety to staff and students" at the next football game…. On October 11, 2017, Defendant Fox issued a memorandum to the District's coaching staff ("Initial Rules"), which stated:

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.

[W]ithout clear evidence showing otherwise [and despite some dispute about the matter -EV], it appears that the Initial Rules continue to be in effect and enforceable at this time….

[T]he Board [then] asked Defendants' counsel, who also serves as the District's general counsel, to draft a facilities use policy to "exclude[ ] any type of political activism or protesting" ("Draft Policy"). The Draft Policy states, in short:

Students and staff members participating in extracurricular programs and interscholastic activities may not 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] during the time reserved for such events. Students or staff members engaging in political activities including peaceful political protest during the time reserved for these events are subject to removal from the event and facility and may be denied participation in future extracurricular activities and interscholastic athletic competitions, events and practices.

The Draft Policy remains a draft and has not been adopted as District policy….

The Court finds that Plaintiff is likely to succeed on the merits because, under Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969), a school cannot limit a student's right to free speech if it is unlikely to substantially disrupt the school's activities or learning or interfere with other students' rights. See also W. Va. State Bd. of Educ. v. Barnette (1943) ("[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 FirstAmendment to our Constitution to reserve from all official control.").

Though schools may regulate students' speech in some limited circumstances, public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." In other words, students "cannot be punished merely for expressing their personal views on the school premises—whether 'in the cafeteria, or on the playing field, or on the campus during the authorized hours.'" …

Kneeling is Speech

It is well settled that certain actions, though not spoken, are considered speech and protected by the First Amendment. See Barnette ("Symbolism is a primitive but effective way of communicating ideas.") This is especially true when these actions involve other patriotic acts. Id. ("There is no doubt that, in connection with the pledges, the flag salute is a form of utterance.").

The Court finds that Plaintiff's kneeling during the National Anthem is speech. This action is closely linked to the similar, well-known protests performed throughout the country, started by former National Football League quarterback Colin Kaepernick. It is clear to the Court that by kneeling, rather than standing, during the playing or singing of the National Anthem Plaintiff is expressing a similar protest to "racial injustice in our country." Plaintiff also states that he intended to express this opinion.

Legal Standard Under Tinker Applies

"The schoolroom prepares children for citizenship, and the proper exercise of the First Amendment is a hallmark of citizenship in our country." Chandler v. McMinnville Sch. Dist. (9th Cir. 1992). But this practice of citizenship is not without its limitations. While schools prepare students for adult experiences, a school is not required to ensure a full adult experience while on campus, especially if such experiences would interfere with the school's "basic educational mission." Thus, courts have found that "the determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board," rather than with the judiciary. Because school officials have a better sense than courts of how to best monitor this speech, a school can permissibly regulate three categories of speech with varying standards:

(1) vulgar, lewd, obscene and plainly offensive speech is governed by Bethel School District v. Fraser (1986);

(2) school-sponsored speech is governed by Hazelwood Sch. Dist. v. Kuhlmeier (1988); and

(3) speech that falls into neither of these categories is governed by Tinker.

It is clear that Plaintiff's actions are not "vulgar, lewd, obscene, [or] plainly offensive" speech, nor is Plaintiff's silent kneeling during the National Anthem at a sports game "school-sponsored speech." Cf. Fraser (finding a speech at an official school assembly containing an "elaborate, graphic, and explicit sexual metaphor" was offensive speech); Hazelwood (holding that a school newspaper produced in a journalism class taught by a faculty member during regular class hours and where the students received grades was school-sponsored speech). Instead, Plaintiff's quiet protest at an extracurricular activity falls within the speech governed by Tinker. See also Hazelwood (distinguishing between "a student's personal expression that happens to occur on the school premises" and an "educators' authority over school-sponsored [activities] that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school"). A school has less of an interest (and receives less deference) when restricting a student's speech that expresses the student's personal opinion, rather than when the student's opinion is blended in and interpreted as being that of the school's.

Here, even though his actions occur during a school sanctioned activity, Plaintiff's kneeling during the National Anthem is easily interpreted and distinguished as his own expression, and not that bearing the school's imprimatur. By silently kneeling on the sideline, Plaintiff's protest to racial injustice sends a personal message to the community that is akin to an individual student's display of a button or an armband during school hours. The expression is easily interpreted as his own, rather than the school's, much like Colin Kaepernick's expression is interpreted as his own, and not imputed to the San Francisco 49ers.

Moreover, Plaintiff's kneeling in protest during the National Anthem expresses an opinion that is opposed to the school's decision to play the National Anthem with the expectation that students will stand. The record shows that any reasonable person would interpret Plaintiff's expression as being separate and apart from the School's opinion. Accordingly, the Court analyzes the Initial Rules under Tinker.

No "Likelihood of Substantial Disruption" or Interference with Other Students' Rights

In Tinker, the Supreme Court found that a school can regulate students' speech if the school shows "facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities" or interference "with the rights of other students to be secure and to be let alone." Even so, the Supreme Court found that students wearing black armbands to protest the Vietnam War "was a silent, passive expression of opinion, unaccompanied by any disorder or disturbance" that "neither interrupted school activities nor sought to intrude in the school affairs or the lives of others." Id. ("Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk…."). Thus, the First Amendment protected the students' expression and prohibited school officials from regulating this form of expression. Compare id., and Chandler, 978 F.2d at 530 (rejecting school's argument that students wearing buttons that said "scab" to express their support of a teachers' strike were inherently disruptive), with Taylor v. Boswell Indep. Sch. Dist. (10th Cir. 2013) (holding school officials could regulate students' free speech rights to prevent them from distributing rubber fetus dolls after a distribution of 2,500 dolls resulted in various "doll-related disruptions").

Plaintiff's silent kneeling during the National Anthem is not likely to cause a "substantial disruption of or material interference with school activities" or interfere with other students' safety. Tinker. When Plaintiff first knelt, he did so peacefully and without incident. Plaintiff also knelt peacefully at the second football game.

It was only hours following Plaintiff's protest, and after the football game, that students from a different school made racial slurs and threw water at a few of the School's students. Even so, this incident does not rise to a "substantial disruption of or material interference with school activities," nor does it interfere with the students' safety. Tinker (finding that "a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises").

The football game was played as scheduled and, while the Court does not minimize the impact of racial slurs and threats, the threats were minimal and did not lead to any physical violence. The students' threats were to "force" Plaintiff to stand, and the only action taken was water being tossed from a water bottle, getting one student wet. The School's principal confirmed that there was no evidence of a fight during or after the game. Additionally, the likelihood of this incident happening again is reduced because the School requested that Mayer High School be removed from its upcoming football schedule.

The Court finds that, when applying Tinker, Plaintiff is likely to succeed on the merits because the Initial Rules, as well as the proposed Draft Policy, are aimed at regulating students' speech that is unlikely to cause a substantial disruption of or material interference with school activities or interfere with other students' rights….

Accordingly, the Court ENJOINS Defendants, serving in their official capacities, as well as Defendants' officers, agents, servants, employees, and attorneys, from enforcing the District's Initial Rules and/or temporary requirements on National Anthem political protests as stated in its October 11, 2017 memorandum and October 12, 2017 letter from Superintendent Rauna Fox; the District's Draft Policy (BP 1330.2), currently titled "Use of Facilities or Grounds for Political Activities"; or any other similar policy that would:

(a) restrict Plaintiff's or other students from kneeling or sitting during the playing or singing of the National Anthem at extracurricular events, including athletic events; or (b) require any action from Plaintiff or other students during the playing or singing of the National Anthem at extracurricular events, including athletic events ….

NEXT: Texas Cops Shoot and Kill 6-Year-Old While Shooting and Killing Woman They Were Chasing

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  1. Since this case comes from California, perhaps Judge Kozinski of the Ninth Circuit will be able to rule on this case and clarify the legal issues.

  2. Yup. According to Tinker, the students who want the school to be able to censor the protests are going to have to do more than throw a little water. The students at Live Oak High School understood this when they wanted to censor the American flag.

    1. What did the students at Live Oak do?

      1. Threatened to beat up/kill any student caught with a US flag on May 5th. This provided the school administration with a pretext to ban the flag on account of public safety.

        Conspicuously, the school showed little interest in going after the students making the threats.

  3. Eidde; Kozinski retired on December 18, 2017, after allegations of improper sexual conduct so won’t get his take. But if instead of kneeling, the student raised a fist or hoisted a protest sign, would that be considered a substantial disruption of or material interference with school activities or interfere with other students’ rights.

    1. Yeah, there seems to be a lot of emphasis on “silently” and “peacefully”…however, would it suddenly become obscene or substantially disruptive if the player instead silently and peacefully raised both middle fingers at the flag? What if it was a silent or peaceful Nazi salute? How many punches need to be thrown before this Court sees a substantial disruption….do you think those that are offended have gotten that message clearly? Is the Court really saying that if the coach believes that this silent and peaceful kneeling is disruptive to team unity and focus, he would not be allowed to regulate the behavior….without getting three lawyers and a Court order? We’ve lost common sense….does anyone really believe that the first amendment framers would take free expression to these ridiculous ends? Yeah, yeah I know….no public schools in those days…and no 14A incorporation to apply it to the States….still, civility and not being rude used to be things we taught in school…of course they used to pray as well…and I hear it was peacefully done……

      1. Sorry to see that you’re apparently of the fake Scalia/Gorsuch fraudulent “originalist” school, who purport to be able to travel back to those halcyon days and read the Constitution through the encrusted lens of the holy Founders. I suppose back in 1789 (or 1820) if a slave didn’t stand up for the anthem, with its racist third verse, he could have been shot, and so why not a student? Do you long for those days, as does Roy Moore? It is in fact easy to distinguish Nazi salutes and hoisted middle fingers from kneeling, and yes, peaceful character of the protest does matter and is also not difficult to discern. Should the players not be permitted to wear wrist bands or armbands if they want to honor a recently departed loved one? And by the way, the heckler’s veto you’d like to introduce into schools is outlawed by California statute.

        1. Wow, a lot of ad hominem in there. That aside, why is it easy to distinguish a Nazi salute from kneeling? How is it much different than the “peaceful” black power salute? You seem to be the arbiter of what constitutes a significant disruption….and what type of symbolic speech is allowed….good to know. If the kneeling was not meant to be disruptive and purposefully offensive, what otherwise is its goal during….and only during…..the National Anthem? Why are students prevented from wearing t-shirts with confederate flags on them (Hardwick v. Heyward)? Why do the hecklers get to veto that one? You seem to be OK with speech as long as it is consistent with your own political bias. There is nothing in this case’s record that impugns the good faith of the school district placing a regulation on kneeling. Since when is the court a better arbiter of what does or does not constitute a disruption? Why do you want to be ruled by an unelected and unanswerable judiciary?

          1. Have you read the case’s record? The school district didn’t even try to connect the kneeling behavior with actual disruption or threat of injury. I’ll give ground on the Nazi salute, abhorrent though it is, but it may be protected. So would a fist in the air, as done in the 1968 Olympics by Tommie Smith and John Carlos. A protest is usually not meant to be disruptive — you seem to confuse disruption with getting attention or sending a message. The person kneeling is not preventing anyone else from behaving as they wish during the national anthem.

            The Heyward case turned on its facts — the judges ruling against the students were doing so in — and because of — an environment where there was a history of segregation and racial tension, and actual past incidents, leading school officials to a reasonable conclusion that disruption would ensue. In fact, the court in Heyward noted that displaying a Confederate flag did not automatically result in a ban. You have no idea whether I’m (constitutionally) OK only with speech that I agree with; you assumed I would side with the anti-Confederates on the ground that I disagreed with their message, which is wrong (though I do disagree with that message).

            What worries me is school officials regulating speech based on what they like or dislike, which is what happened in this San Pasqual case. I’d prefer to have a court that knows the law (i.e., Tinker and its progeny) instead of a school official, who I believe was also unelected.

            1. “The school district didn’t even try to connect the kneeling behavior with actual disruption or threat of injury.”

              True, they basically argued that if you wanted to be on the team, you had to do what the coach told you to do.

              I’m looking forward to the joker who decides to show up for the big game wearing a different school’s uniform.

              1. Nope, the district did not assert that players had to do what their coach tells them. Instead, it argued only that the offending policy was not in effect, had been abandoned, and so the case was moot. The trouble with that was, the district didn’t bother to tell anyone that the policy, originally announced to be effective “until further notice”, was no longer in effect.

                As for your argument, there is a difference between telling players they have to show up for practice, run the plays as instructed, wear the right uniform, and otherwise conform to team requirements. The national anthem protest is outside of that bailiwick. (And of course, I’d bet the constitution protects players who wear an arm band, eye black or bracelet with a message, as long as it wasn’t one that could seriously lead to disruption.

      2. I would have to conclude that a raised a fist or hoisting protest sign would be protected speech since ostensibly that would not be considered a substantial disruption of or material interference with school activities or interfere with other students’ rights. I wonder if had a fistfight occurred after the Mayer game the ruling would have been different.

        Interesting that the team name is the Warriors with an image of a feathered Indian head as a logo. Figured that would be met with with disfavor in California.

      3. If civility is something we should be teaching kids in public school, why not include also teaching them the importance of the First Amendment and the limits it places on government action? Do we want graduates of our public high schools to understand that they have a right to stand up to over-reaching government authority, or not?

        1. Some of us do.

      4. of course they used to pray as well…and I hear it was peacefully done..

        There are lots of ways to keep things peaceful. Not all of them are admirable.

        Organized prayer in public schools is a bad idea.

  4. EV setting a world record for amount of posts after everyone else left for Christmas vacation

  5. Dont I remember a court barring a coach from kneeling on the football field? Kids can kneel but adults cant?

    1. Yes, that coach was deemed to have engaged in “government speech” — that is, speaking on behalf of the public school when he knelt in prayer after a game in full view of all attendees. That case was distinguished in a Texas cheerleader case, where the cheerleaders wanted to engage in religious expression, and were permitted to do so, because their speech could not be mistaken for that of the school. That latter distinction would apply to the high school students in this San Pasqual case.

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