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.


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.

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  1. 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 Establishment Clause).

    Any requirements?

    This can’t be unlimited. Surely any such requirements must have some relationship to the activity involved.

    1. That sounds right. Surely the schools couldn’t require all students who play football to, say, endorse Trump. Or support the re-election of the current members of the school board.

      1. Though I believe I saw an example recently of a Prof offering extra credit for going on an anti-Trump demo.

        1. On requirement that can certainly be imposed is of a negative sort: no student who volunteers for sports may engage in any form of speech that damages a reputation. For example, the Second Circuit has held that impersonations that don’t damage a reputation are legal, but ones that do damage a reputation can be criminalized and punished with incarceration (apparently regardless of any “Article 19” international human rights standards). Surely no one here would dare to defend the “First Amendment dissent” of a single, isolated judge in America’s leading criminal “satire” case? See the documentation at:


        2. If true, it’s wrong. And if the First Amendment applies, it’s quite likely unconstitutional.

          Absent a source, there’s no way for any of us to evaluate your claim.

          1. Apparently Reason (departing from its well-known, longstanding “post anything you like, no matter how preposterous” policy) has agreed to allow Eugene to remove any comments he doesn’t like. He has already removed three of mine that didn’t meet his standards.

            1. So, how do you know it was Eugene doing it? We’ve all got that “report spam” button, maybe somebody else is abusing it.

              1. I did delete Quixote’s comments, precisely because they were spam. I have no ideological problem with Quixote’s defense of Raphael Golb (see http://www.courts.state.ny.us/….._03426.htm); I don’t agree with it, but that surely isn’t reason enough to delete it. But the comments were basically the same thing posted to several threads, and they were off-topic for each of those threads.

                1. Whereby we see Eugene introducing a new policy to the Reason website.

                  You can look back through articles posted on this site during the past few years, and see that my comments have never been deleted, even though the authors of those articles might have felt the same way. So I now need to make a few points in reply to Eugene’s admission that he deleted my comments.

                  First, why does Eugene say that I “defend” our nation’s leading criminal satirist? I do quite the contrary, as anyone could verify by reading my comments that he has deleted–but of course they cannot read them, because he has deleted them.

                  Second, the definition of spam is “unsolicited usually commercial messages (such as … Internet postings) sent to a large number of recipients or posted in a large number of places.” Eugene has apparently expanded this concept and come up with his own definition to justify controlling the content of commentary on his articles.

                  Third, it’s one thing for the community of readers to use or abuse the “spam” button, it’s another thing for Eugene himself, the author of the article being commented on, to decide what readers should see.

                  Finally, no, my comments are not “spam.” Eugene may not understand why they are relevant, but this simply illustrates an apparent lack of wit and perspicacity on his part. (Note: some Reason participants have on occasion loosely accused me of posting “spam,” but others have come to my defense.)

                  1. P.s. the question also naturally arises: has Eugene also been deleting comments posted by other participants, e.g., by those who may have “followed” him here from the Washington Post? There are many ways of shedding light on a topic; Eugene’s decision to impose his own view of what’s an appropriate way is of course perfectly legal, but it seems to reveal a certain arrogance–perhaps the same kind of attitude that the Supreme Court rejected when it rejected his effort to narrow the reach of the First Amendment in his “Stolen Valor” amicus brief. That’s quite a new development in policy regarding comments at Reason.

                    1. Prof.Volokh lacks either the time or inclination to comment on freshly revealed federal censorship (“fetus,” “diversity,” “science-based”) or the prominent and ugly misadventures of the federal judge for whom he clerked, yet is censoring comments.

                      As good a way as any to welcome the Volokh Conspiracy’s brand of libertarianism to Reason.

                    2. Technically, it’s only censorship when you tell somebody else what they can write. When you tell your own employees what words they can use, while writing for you on the clock, it’s called a “style guide”.

                    3. Bellmore-style libertarianism evidently includes freedom from the dictionary.

                    4. Volokh-style libertarianism evidently involves interpreting “off-topic” as excluding any comments that suggest Volokh’s conservative positions are tainted by hypocrisy. His well-known position on America’s leading criminal “satire” case, for example, is arguably relevant whenever he indulges in a joke or a pun that doesn’t work: compare, for example, Professor Arthur Hayes’ directly contrary (and clearly very dangerous) position at:


                      Similarly, Volokh’s well-known effort to restrict the reach of the First Amendment in the Stolen Valor case is arguably relevant to each of his postings that seem to take a professional, “neutral” position on a First Amendment issue. Not so for Volokh; he interprets “off-topic” in a way that suits his personal interests.

                    5. P.s. to complete the welcome, it is also worth pointing out that Volokh’s confessed attitude fits in with a broader propensity of his: namely, his use of a particular technique of non-engagement that is symptomatic of the decline of academic standards in this country. He states a position, for example, in the New York criminal “satire” case, but then when others take issue with what he has said on specific grounds, he casually ignores their points and moves on to another topic.

                      Far from me to suggest that Volokh is wrong about whether parody needs to be “clear” or “obvious” to benefit from constitutional protection (as stated, Professor Hayes’ position on this matter is clearly very dangerous). But since many people don’t know about the other position, Volokh’s failure to engage with it leaves them with the impression that his own position is the only one. In academic lingo, this is called making “hit-and-run” claims. Gordon Moran, in his book Silencing Scientists and Scholars in Other Fields: Power, Paradigm Controls, Peer Review, and Scholarly Communication, lists it as one of various techniques commonly used to evade debate and hence silence scholars with differing viewpoints. To this we can now, of course, add censoring comments on spurious grounds.

                  2. You do realize there is a difference between comments in context to an article and spam out of context to an article. Similar to junk mail being thrown out once received.

                    1. Ahem, let me channel Artie’s new BFF, Quixote:

                      “Spam only has this one specific definition which conveniently does not include the type of spam that I am performing, and preventing me from being annoying and off-topic is censorship!!!”

                    2. That was a reply to Flame, and to Vinni: thank you for adding “annoying” to the mix of justifications. This seems to show quite a lot about Eugene’s arrogant position, because it’s the nature of criticism to be annoying. If you have been following the discussions on Reason for the past five years, then you are well aware that they are full of thousands of comments that could easily be considered “annoying and off-topic.” The fact remains this is a departure from the policy always followed on this website, and contrary to the attitude one would expect from any academic who presents himself as an expert on First Amendment issues.

                    3. And you do, of course, realize that there’s a difference between a link about making money from home (also regularly tolerated on Reason) and, for example, a comment designed to make a point about Eugene Volokh’s broader (arguably hypocritical) approach to the First Amendment. Even a bit of humorous or provocative digression can have value in a discussion. Anyone who is really not interested in my comments can simply ignore them, but naturally Eugene would like the discussion to remain carefully focused on a different aspect of the First Amendment so as to avoid having that broader point discussed.

                      You accept Eugene’s claim that he merely removed these comments because they were “off-topic.” Perhaps he is an arrogant prick who can’t see further than his own nose; but it seems far more likely that he used a pretext to censor comments whose content he would rather not have people see. Either way, his attitude is contrary to the spirit of free and open debate that has always characterized Reason, and that should arguably characterize the public blog of any academic who presents himself as an authority on First Amendment issues.

                    4. (The first of the two comments above is in reply to Vinny, the second in reply to Flame. They came out in reversed order.)

  2. I’m getting the smell of wedding cake from this.

    1. Most obviously, we have the recognition of symbolic speech.
    2. And the co-opting of action by the government
    3. And then the question of whether the speaker has volunteered (ie by becoming a cake maker) – and precisely what it is that he’s volunteered for
    4…and whether the government’s requirement goes beyond insisting that the speaker doesn’t mess up the government’s activity he has volunteered for ie….

    “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.”

    On all of these it looks to me like the cake maker is on much more solid ground than the kneeling athlete – never mind the distinction between private business and government school. But we’ll find out soon enough.

    1. you should go see an ent. these athletes dont routinely charge patrons to see them standing, only to refuse patrons who happen to be gay, black, etc.

    2. Even assuming that one speaks when one designs, and for the first time, bakes a 3-tiered spice cake with white, butter-cream icing, the meaning of that speech doesn’t change the 45th time one bakes it, because one doesn’t care for the identity of the client.

      1. 1. If you doubt that one can speak when one designs, do you also doubt that one can speak when one kneels ?

        2. You could say the meaning of the phrase “I agree” doesn’t change however many times you say it. It always means “I agree.” But by saying “I agree” to one proposition, you don’t thereby agree to all propositions. So moving beyond the level of utter banality, “I agree” means something different each time you say it – the real meaning depends on what it is that you agree to. Ditto kneeling. Kneeling is hardly an original creative act. But its communicative content depends on context.

        But since we’re doing banal, let’s nail it down properly. “Would you go out with me ?” has a pretty standard meaning. You are not composing a new and original speech each time you utter it. When you say it to Doris, you mean exactly the same as when you say it to Juanita (except, in each case, who exactly it is that you are asking out.) But if the government demands that you must also say it to Alice, they have no argument that they’re not forcing you to speak simply because it’s something you’ve said before. They may have an argument that making you say it to Alice serves some compelling government purpose, but the argument that forcing people to say something they’ve said before isn’t forcing them to say something isn’t even silly. It’s way more embarrassing than that.

        1. cooking food is speech. lets not serve black people in restaurants.

          1. Deep, man. Lay some ganja on me.

  3. 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.

    Why not? You have done a very good job of laying out various and reason regarding somewhat related issues. But, when you get to the crux, your argument is that Eugene Volokh thinks so. Or, better yet, prefers it to be so.

    1. Well, the band members would be asked to do what they’re being taught to do (playing music) — that’s the point in the paragraph about connection to the curriculum that’s being taught — and what they’re being showcased for doing. The players, on the other hand, are being taught to play football or basketball, and being showcased for playing it; being required to participate in a patriotic exercise is at most very distantly related to the curriculum. That’s the distinction I was trying to draw; and it probably also helps explain why a teacher can require students to give what he sees as the right answer to a history question on an exam, but the school can’t require students to pledge allegiance to the flag.

      1. Pity the band parents who’ll have to sit through high-school orchestra concerts after the Supreme Court holds the First Amendment protects the students’ rights to pay whatever notes they wish.

      2. Seems vaguely related to the standard Unitarian-Universalist Church joke.

        Why is the hymn singing at UU churches so bad? They’re all reading ahead to make sure they don’t disagree with the words.

      3. Prof. Volokh,

        Whether band or athlete, both are participating (i.e. working) as required by the extra-curricular activity. The controlling agency has the authority to require specific dress, specific actions, etc. and the individual does not have a right to use the public venue for personal speech. IIUC that is the time/place restriction used by universities and other public schools to restrict speech on school property. One has chosen to participate in an extra-curricular activity therefore has to abide by the rules.

        IIUC religious exception is also under 1A with free speech.

        1. The “rules” for extracurricular activity may include participating in the athletic practice or play as prescribed, but it does NOT mean that the student must stand for the national anthem and can be forbidden to kneel. The student does not waive all those First Amendment rights, and even as a team member wearing a team uniform is not necessarily speaking for the team while the anthem is played.

  4. The section recounting the conduct of the young, authoritarian bigots-in-training from Mayer High School was interesting.

    1. They remind me of you RAK. Although not violent like your friends at Antifa.

  5. … transcends constitutional limitations

    No. It transgresses limitations. Or tramples them.

    Where’s Selya?!

  6. I am far happier telling the schools that they can’t enforce compelled speech and actions, than telling NFL teams that they couldn’t. In the former, you have govt compelled speech and actions, but in the latter, it is employer compelled, which is fairly easily justified.

    1. nfl teams havent been made to do anything by the govt with respect to the anthem kneeling.

    2. In the NFL, there is no First Amendment, but there is collective bargaining. So an employer cannot unilaterally impose discipline on players without some level of bargaining process.

  7. Admittedly, I didn’t read all the comments, but I don’t get it. Would the school let another player express himself by putting a MAGA hat on their seat on the bench while warming up. Or would they say that the MAGA hat could incite violence? So if someone kneels, isn’t there a potential for violence from a “redneck” in the crowd? If this isn’t a good argument, then the implication is that Liberals are violent and must be accommodated; and Conservatives are polite, so don’t worry about insulting them.

    1. As the essay explains, there’s a distinction between being compelled to say something one doesn’t believe in (“this country and everything about it is A-OK”) and being told that one should advance one’s views (“MAGA”) on one’s own time.

      1. Yes, the more accurate analogy would be to compel the player to wear either a MAGA hat or an anti-Trump hat while warming up.

        1. Actually the MAGA hat seems like a pretty clear case. You can’t force a team to wear them (political endorsement by public school group) but you can force someone NOT to wear it (not part of the uniform).

          The hecklers veto would be interesting to discuss. would the potential for violence by allowing kneeling be something the district could act on? If the potential for violence is enough for courts to deny students the right to wear flag shirts (Dariano v. Morgan Hill), why not restrict their speech based on the potential for violence here?

  8. One could argue that a school sponsored sporting event is not an appropriate forum for making personal political protests. The action could also be interpreted as showing contempt for other participating players and detracts from the enjoyment of the spectators. So I think it is entirely within the prerogative of the school to insist that players stand during the anthem as an obligation for being allowed to participate on the team. Or stay in the locker room.

    1. The essay implies that the school didn’t offer the option of staying in the locker room.

    2. It’s political speech whether one stands and takes off his/her hat/helmet, or kneels, or raises a fist, or dons a MAGA hat. Why does the school get to dictate some are OK and others not?

  9. I would think the reasonable fear of fights between teams or disruption among teammates (erosion of team camaraderie) would be sufficient cause to limit the kneeling for high schoolers……with the most obvious solution to stand. Standing does not require the student to put his hand over his heart or to sing the words of the song. Standing doesn’t compel any specific thought at all. Standing does teach a certain amount of respect…like standing to greet a visitor to the school, whether one knows the visitor or respects his views. This is why I’m not a big fan of straining to apply the first amendment to teens in an academic environment (or in an academic sponsored event). If a student athlete simulated jerking off at the opposing fans, would we celebrate his wonderful “speech” or would he be suspended and possibly removed from the team? Other behaviors that would show poor sportsmanship or that could incite violence should also be reasonably regulated. Asking a student to be polite for 90 seconds used to be common sense…..now we think we are doing something really important by enabling douche-baggery….how’s that for some speech?!

    1. Is there some distinction you can draw between this and any other heckler’s veto?

      Basically your saying the Gov’t can’t prevent a certain speech act on its own, but the Gov’t and a 3rd party of its choice can, provided that 3rd party behaves badly enough.

      1. My argument is specific to a high school sponsored event where the high school district might assume some liability for an avoidable altercation that could cause injury. Kneeling during the anthem is seen by some as disrespect for the country, by others as a way of protesting for social justice. What controversial statement or action would you agree that the school could limit because of security concerns? Were you not convinced by the actual hostile reactions at another school and the move to assault VA? Does someone need to be beat up and the district sued before you might act?

    2. if its an unfounded fear, then its not a reasonable fear.

  10. I think this student is likely to learn the difference between having the right to do something, and it being prudent. Having the right to do something is inextricably linked to suffering the consequences for doing it; You always eventually lose rights where you’re spared the consequences.

    What I’m wondering is, did the student do it on his own initiative, or was he put up to it by one of the faculty?

    1. I think he’s an agent of the Trilateral Commission.

      And why would it matter?

      1. It he was put up to it by one of the faculty, it provides him with a further defense, (Faculty members having positions of authority relative to students.) but may have implications for that faculty member’s future.

  11. As we legally armed citizens are regularly reminded; what is our right may not be appropriate! That is a horrible weasel-word. It reminds me of “Unauthorized copying, inappropriate for all ages!”

  12. Student actions should be allowed, so long as they don’t result in injury or destruction. One of the more valuable lessons of youth comes from the later feeling of “O God, did I really say/do that?”

    That doesn’t mean that the grown-ups shouldn’t criticize them at the time.

  13. No one has a right to be on the football team. Neither does anyone have the right to play in the game. Hence, if you want to be on the team, you adhere to certain conventions including respecting the rest of the team and the fans, If you want to kneel, go out into the parking lot and kneel, but do not expect to be a member of the team. Both the analysis and the judge are wrong.

    1. I always welcome the views of right-wing authoritarians, but could someone point toward a blog at which one might find discussion of libertarian views?

      1. Truly sad that you expect some else to do what you should do yourself.

        You coming to the VC expecting only your type of Libertarian views (black and white, no gray) is kinda like you continuing to put your bra on backwards and expecting it to fit.

    2. Students don’t give up all of their expressive rights when they join an athletic team, any more than they do when they enter the schoolhouse gates. Respecting the rest of the team does not equate to conforming to everything the rest of the team does. And California demands as much.

      1. The government doesn’t allow coaches, players, and often even fans to say a prayer, which is protected under the 1st Amendment twice, both free speech & freedom OF religion.

        1. Hogwash.

          The government isn’t able to stop individuals from saying prayers. Any member of that team can pray at any time.

          You’re conflating government-sponsored prayer, which usually promotes a single religion over others, with individual prayer. The very amendment you cite as granting the right to prayer is the one that limits the government’s involvement in it.

  14. Seems problematic to draw a constitutional line based on how a third party reacts to your speech.

    First, doesn’t the “substantial disruption test” create a perverse incentive for objectors to a speech act to be as disproportionately, unreasonably disruptive as possible? If booing the kneeler isn’t disruptive enough, then I’ll just rush the locker room after the game. If rushing the locker room isn’t disruptive enough, then I’ll squirt the cheerleaders with water. And so on…

    If my goal is to justify the prohibition of the speech act, and I live within a “substantial disruption test” regime, then the more extreme my reaction, the more likely I am to achieve my goal. Doesn’t it seem objectionable to predicate your First Amendment right on my willingness to escalate my behavior? Isn’t this especially so for unpopular speech acts, which are most likely to be followed by strong reactions but which are arguably the reason you need a First Amendment in the first place?

  15. This is something of a boundary question. It might be helpful to sound out the potential boundary with a series of hypotheticals.

    1. I suspect we can all agree that if a teacher gives a math test, but a student decides to write a paper about his pet dog instead, the school can penalize the student. This means we accept a school can restrict and even compel speech, as part of its educational program, in ways that would not be permissable for a general citizen.

    2. Now consider a cheerleader who decides to display a banner at games indicating the school and its teams stink. It is at least arguable that implicit in the job of cheerleading is to cheer the school, i.e. to speak on the school’s behalf and communicate the school’s message. Cheerleading is an optional activity. Students don’t have to convey the school’s message. But if they don’t, then the school doesn’t have to make them cheerleaders. Is this disputed?

    3. I would tend to agree that the national anthem is not like a math test. It’s not part of the core educational curriculum. But what exactly makes the athlete’s situation different from that of the cheerleader?

    1. Maybe an analytical distinction could be drawn around whether the speech act necessarily and fundamentally disrupts the a reasonably important or even a permissible school function? Another way to think about this is: is limiting speech necessary to accomplishing the school’s goal?

      With the math test, the goal is assessing the student’s grasp of math. I think most people would categorize this an important goal. Allowing any kind of expressive speech would make that goal impossible. Therefore, speech restriction permissible.

      With the cheerleading, the goal is to convey a message about school pride or athletic superiority or something like that. While probably not as important as academic assessment, I think that most people would agree that this is, at least, a permissible goal. Regulating speech is necessary to accomplishing that goal. Therefore, speech restriction permissible.

      With the student protest, the goal of the activity seems to be the competing in a basketball game. Even if that purpose is important or permissible Reciting or standing for the anthem isn’t central to the activity. Therefore, regulation (at least of the kneeling protest) is impermissible.


  16. Yesterday in court the school district essentially conceded it was constitutionally wrong in imposing its “stand or else and don’t kneel” policy by asserting — unpersuasively — that it had abandoned the policy, so the motion for preliminary injunction was moot, according to its counsel. It did not argue the merits, but it also had no evidence that it had actually let anyone in the world know that it had repudiated its policy. The court ordered its TRO to continue in effect pending its ruling on the preliminary injunction.

  17. Yesterday the court issued a preliminary injunction, essentially continuing in force its initial TRO indefinitely, explained its reasoning, and debunked the District’s feeble mootness arguments.

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