In what appears to be the first decision on this issue in the country, a federal court in California granted a high school athlete’s request for an injunction overturning his high school’s prohibition against athletes kneeling during the national anthem. This issue, originally only appearing in the realm of professional athletics, has now trickled down to high schools.  In September, a Louisiana school superintendent wrote a letter to athletes requiring them to stand during the national anthem or face removal from the team.  In October, a high school in Texas made headlines when it kicked players off the football team for refusing to stand during the national anthem.  One federal court has now weighed in holding a requirement to stand during the national anthem is likely to be a violation of the students’ First Amendment rights, especially in a situation where no disruption to the school occurred as result of the protests.

The case, V.A. v. San Pasqual Valley Unified School District, was brought by a high school senior who plays on the school’s varsity sports teams.  At two football games, he chose to kneel during the national anthem to express a reminder of the “racial injustice in our country.”  After an incident where the other team made racial slurs and threats and threw water at some of the students following the kneeling, the district sent out a letter stating that students and coaches must stand and remove hats/helmets and remain standing during the playing or singing of the national anthem.  It further stated that “Kneeling, sitting or similar forms of political protest are not permitted during athletic events at any home or away games” and went on to say that violations of the policy may result in removal from the team.

The plaintiff filed a law suit in federal court and requested a preliminary injunction prohibiting the district from implementing the policy during the pendency of the law suit. The Court found that the plaintiff was likely to prevail on his claimed First Amendment violations and ruled that the District could not enforce the policy during the pendency of the law suit.

The United States Supreme Court first addressed students’ rights to express their opinions at school in Tinker v. Des Moines Independent Community School District.  There, the Court held that a school cannot limit a student’s right to free speech unless it is likely to disrupt the school’s activities or learning or interfere with other students’ rights.  In that case, the Court found that students could not be prohibited from wearing black arm bands to express their disagreement with the Vietnam War.

Schools are generally allowed to regulate three different types of speech to varying degrees. Schools have significant discretion in limiting student’s use of vulgar, lewd and obscene speech.  They also have significant discretion in limiting school-sponsored speech.  Speech that falls in neither of these categories is subject to the least restriction.

In the current case, the court found that the student kneeling during the national anthem, despite the fact that it occurred at a school sponsored event, would not be interpreted by a reasonable person as being school-sponsored speech. The court further found that there was not a likelihood of a substantial disruption from the kneeling.  The court noted that the student had knelt during two games without incident.  During the third game, the court found it significant that there was no disruption to the game itself.  The court found the fact that students from a different school made racial slurs after the game and threw water at the students was neither a significant disruption nor indicative of a valid safety concern.  Balanced against the irreparable harm that the court determined would result if the student was denied his right to express himself, the court granted the injunction prohibiting the district from implementing the no-protesting during athletic events policy.

Although this case occurred in California and thus has no precedential value for schools in Connecticut, this is an issue that has already come up for Connecticut schools. This decision can provide insight into how other courts are likely to address the issues that arise from student protests during athletic events.  Schools need to be prepared for how they will handle such situations before they occur.

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Alerts, commentary, and insights from the attorneys of Pullman & Comley’s School Law practice on federal and Connecticut law as it pertains to educational institutions, whether those institutions be public school districts, private K-12 schools, or post-secondary colleges and universities.

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