The free speech issues surrounding the national anthem at NFL games have found their way to high school fields across the country, and the irony is this: Students at public schools have constitutional protection from discipline for this sort of silent protest, while NFL players do not.
Frank LoMonte, executive director of the Student Press Law Center, points out that the First Amendment guarantees protection from government interference, which includes public schools but not private businesses. “You can’t bring a constitutional claim against the NFL,” he told USA TODAY Sports.
Michael Oppong, a junior at Doherty Memorial High School in Worcester, Mass., knelt during the national anthem last weekend and initially said he would be suspended for it, but the school said that isn’t the case. Worcester Public Schools superintendent Maureen Binienda said in a statement that Oppong exercised his constitutional rights with a peaceful, silent, non-disruptive protest.
That’s in line with a 1969 Supreme Court decision that said students do not shed their constitutional rights to freedom of expression “at the schoolhouse gate” — and that school officials may not punish or prohibit such speech unless they can clearly demonstrate that it would disrupt school activities or invade the rights of others.
“A student could not run out onto the field and grab the flag and set it on fire,” LoMonte says. “But he can certainly sit down or kneel or otherwise engage in an act of symbolic protest.”
LoMonte points to a 1943 Supreme Court decision that public-school students cannot be forced to salute the flag or say the pledge of allegiance: “So they certainly can’t compel you to stand up at a football game where the school’s interest in keeping order is quite a bit less that it is inside a courtroom.”
Private schools are free to make their own rules on such matters. The Roman Catholic Diocese of Camden, N.J., will suspend players who do not stand for the national anthem: Two games for a first offense and up to a full season for a second offense, according to a letter from superintendent Mary Boyle obtained by Philly.com. The letter says Catholic schools “are not public institutions and free speech in all of its demonstrations, including protests, is not a guaranteed right.”
Or, as LoMonte puts it: “Private schools are like your relationship with Macy’s department store — if you don’t like it, you can shop somewhere else.”
Public school officials can’t prohibit non-disruptive political expression, but what about coaches?
“The First Amendment is a little murkier there,” LoMonte says. “There are definitely some court interpretations that a coach has greater latitude to enforce internal team discipline if somebody is doing something that interferes with the inner working of the team.”
USA TODAY High School Sports compiled a sampling of player protest across the country since the start of the high school football season:
► One player at Waggener High in Louisville took a knee for the anthem. Several others started on a knee but rose as the music began. Coach Jordan Johnson said the team would take steps before its next game Friday to find ways for players to support social justice without “showing what is perceived as disrespect.”
► Players and coaches at Woodrow Wilson High in Camden took a knee during the anthem; two senior players chose to stand. Brendan Lowe, a district spokesman for Camden City Schools, said in a statement:“Whether our students choose to stand, kneel, or otherwise, we’re proud of their engagement with what is more broadly a very important social issue.”
► The public address announcer at McKenzie (Ala.) High said: “You can line up over there by the fence (if you don’t stand) and let our military personnel take a few shots at you since they’re taking shots for you.” That was met by big cheers, according to AL.com, which received an email from Butler County Schools superintendent Amy Bryan that said “patriotism should be a part of school events but threats of shooting people who aren’t patriotic, even in jest, have no place at a school.”
Contributing: Cam Smith