Last week, amidst the debates surrounding the National Anthem, a school board in Louisiana issued a statement on students and the anthem. Linking the discussion to Barksdale Air Force Base and patriotism, school Superintendent Scott Smith said, “The least Bossier Schools can do is expect our student athletes to stand in solidarity when the National Anthem is played at sporting events in honor of those sacrifices.”

Later, the principal of Parkway High School, a school in the parish, sent a letter to students and parents that went viral. In the letter, pictured below, Waylon Bates, Parkway’s principal, acknowledges that the LHSAA allows schools to make their own “decisions regarding student [athlete] participation in the National Anthem” during sporting events. Bates goes on to add, however, that if a student does not “stand in a respectful manner throughout the National Anthem” that student will face a “loss of playing time and/or participation” and repeated noncompliance “will result in removal from the team.” 

I have already posted about Colin Kaepernick’s protest of the National Anthem last year, so I do not want to address that aspect. Nor do I want to address the aspect of Kaepernick’s message becoming whitewashed last week after the President’s remarks and the expressions of solidarity during NFL games. Others, such as Louis Moore, have already covered that ground thoroughly from both a contemporary and historical perspective. Today, I want to focus on whether or not Parkway High School has the legal right to reprimand student athletes if they do not stand “respectfully” for the anthem. (The issue of what constitutes “respectful” is at question in this letter.)

This semester, I am taking a class on law in higher education, and as part of that class, I have started to read court cases on Civil Rights, Title IX, and the First Amendment. When I first read the statement from Parkway’s principal, my mind went to the Supreme Court case Tinker v. Des Moines (1969), a case that granted students the right to protest the Vietnam War in school by wearing black armbands. The school district argued that the students wearing the armbands would disrupt the learning environment; however, the court did not buy this argument, and they ruled that the students had the right to protest through the wearing of the armbands.

At the center of this case, of course, was the First Amendment clause that states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Within this clause, the government does not have the right to hinder “the freedom of speech” of any individual. In Tinker, the school board attempted to limit the students’ symbolic speech by having them suspended until the protest ended.

In the Supreme Court’s opinion, Justice Fortas commented that the lower courts ruled in favor of Des Moines because their decision “was based upon the fear of a disturbance” from the students wearing the armbands. However, Fortas and the majority justices countered by saying, “[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the freedom of expression.”  The school board acted because it sought to avert any incidents, but the court ruled that this was inadequate excuse because even when the students “neither interrupted school activities nor sought to intrude in the school affairs or the lives of others.”

In regard to when and where students can express their opinions, Justice Fortas wrote,

A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without ‘materially and substantially interfer(ing) with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others.

Taking Tinker as the focus, a couple of questions arise: If a student kneels during the anthem, does that student hinder the “rights of others”? If a student kneels, does that student interfere “with the requirements of appropriate discipline and operation of the school”? Is the discipline proposed by Parkway “appropriate”?

Breaking down these questions, and based on Tinker, a student kneeling is a symbolic act that does not interfere with anyone else’s rights during the playing of the anthem. Is the school’s discipline “appropriate”? I would argue no, because Des Moines essentially had the same punishment, suspension, and the Supreme Court ruled that inappropriate.

If answering these questions is not enough, Justice Fortas also commented on the authority of schools in curtailing student speech:

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.

Does Parkway confine students, with the statement above, “to the expression of those sentiments that are officially approved”? Yes. Does Parkway’s statement allow the students their First Amendment rights in the “expression of their views.” No.

It must be noted here, as well, that Kaepernick initially sat during the anthem. After a white veteran informed him that soldiers kneel at the graves of fallen comrades, Kaepernick changed his position to kneeling. Again, you can read about these aspects in other places, but it is worth noting since the school board positions part of their statement around the respect for the servicemen at Barksdale.

In conclusion, I want to share a list of other Supreme Court cases that should be looked at in relation to Parkway’s letter.

• West Virginia State Board of Education v. Barnette (1943)
• Engel v Vitale (1962)
• Abington School District v Shempp (1963)
• Texas v Johnson (1989)

What are your thoughts? As usual, let me know in the comments below, and make sure to follow me on Twitter at @silaslapham.