With a knee on the ground during the national anthem, Colin Kaepernick fueled a movement.
Since then, other players in the NFL have joined him in this form of silent protest against the country’s long history of oppression and injustice to its citizens of color. Some have remained seated on the bench during the duration of the song while others take a knee as their surrounding teammates stand. Kansas City Chiefs cornerback Marcus Peters raised his fist in solidarity during the anthem on September 11.
As if the growing number of athletes in the league wasn’t already an indication of the protest gaining traction, soccer star Megan Rapinoe decided to take a knee during the anthem before her game against the Chicago Red Stars. She mentioned in an interview later on that it was meant as a “nod to Kaepernick”. Rapinoe continued her protest by kneeling again before playing Thailand on September 15, this time sporting the U.S. women’s national team jersey.
The protest has spread to high school athletes as well, sparking a conversation on the constitutionality of reprimanding them for it. Michael Oppong, a football player for Doherty Memorial High School in Massachusetts, also joined the protest by kneeling before a game. According to Oppong’s twitter account, however, he was punished for his actions.
Just like that, a fire ignited on Twitter. The next day, Oppong tweeted that his suspension had been lifted.
Thousands of accounts retweeted and favorited the tweet, quickly spreading the word about how a public high school oppressed a student’s first amendment rights after he peacefully protested the anthem. Debates popped up everywhere on the website as people argued back and forth on the legality of the suspension. Some did not hesitate to say that it was unconstitutional for the school to do such a thing. Others weren’t so sure. Many believed students had rights when they were in school, but that they were limited.
The conversation continued when Native American student Leilani Thomas and her friend had participation points deducted by their teacher after sitting out of the pledge of allegiance in class. Thomas had been doing it since the second grade.
“My dad and my mom brought up what [the pledge] meant to us and our people and what happened—you know, the history. So I just started sitting down,” she told ABC News. When the superintendent of the district became aware of the incident, Thomas and her friend were transferred to a different class.
In a show of solidarity with the growing number of students who have followed his stance, Kaepernick recently surprised a group of Oakland students by showing up during their practice and kneeling during the national anthem. While Kapernick kneeled, the athletes lay on the ground, their hands in the air, in demonstration of “their vulnerability.”
But the conversation continues.
What’s the right answer? Do students have full, unlimited first amendment rights in public schools? Is it constitutional to punish them for a protest that had no effect on the rights of others surrounding them?
Students do not lose their first amendment rights upon entering a public school facility. These rights, however, are limited and situational. There are factors that determine whether the student’s actions in question are allowed in a public school setting—some of them being the nature of the protest, the school’s policies and disciplines, and the effects on the rights of those surrounding them.
When these stories garnered massive attention on social media, many people supporting the students referenced the 1943 case of West Virginia State Board of Education v. Barnette. This was the first case to address that idea students had first amendment rights in public school. The case in question began when students who were members of the Jehovah’s Witnesses did not stand for the Pledge of Allegiance in school. They argued that their religion said they could not pledge allegiance to anyone other than God. When the case was brought to the Supreme Court, they agreed, upholding the students’ right to freedom of expression while in a public school.
Another case that can be used as precedent is the 1969 case, Tinker v. Des Moines. In it, student John F. Tinker brought a lawsuit against the Des Moines School District after he and two other students were suspended for wearing black armbands to school. The armbands were a protest against the government’s policies in Vietnam during the war. The three students were suspended and the decision was upheld in the District Court, however, it was overturned when the case reached the Court of Appeals.
The court found that the students’ form of protest had not disrupted any school discipline or activities and had not infringed on any rights of others. They found a way to express their disapproving opinion in a way that was silent and peaceful; the school had no compelling reason as to why they’d been reprimanded. Veritably, neither did the District Court when they upheld the school’s decision.
These cases can be used to argue the same in Oppong and Thomas’s situations. Oppong made the decision to kneel during the anthem before his high school’s football game quietly and peacefully. Thomas chose not to participate in the pledge of allegiance during class simply by sitting in her seat. They found ways to express their opinions and exercise their free speech without overstepping on the rights of those around them.
The Bethel School District No. 403 v. Fraser case that reached the Supreme Court in 1986 offered the limitations of a student’s free speech in this setting. The student, Matthew Fraser, delivered a speech during a school-sponsored event of government elections using graphic and sexual language. Although the Federal District Court ruled in favor of the student due to the school’s “vague” and “overbroad” disruptive-conduct rule and the Court of Appeals upheld the decision, the Supreme Court reversed the ruling. Chief Justice Warren Burger, writing for the majority, stated that it is “a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”
As we see with the cases above, the nature of a student’s protest usually determines the outcome of the situation. It’s important to note that different public schools in different states and jurisdictions may have unique sets of rule and disciplines for its students. If a public school student was interested in protesting some cause while in school, it would be beneficial to them to research their school’s discipline and guidelines beforehand, while also making sure not to disrupt other students and teachers. Our rights are ours until we infringe on others.
One of the greatest things about this country is the right to free speech that we should all be able to enjoy equally. It’s important to praise the many great things about the United States of America while also being able to criticize what’s wrong and taking action without fear. Students should be able to exercise these rights in a safe environment that is open for discussion. After all, our school system is in place to encourage exactly that: educated conversation and a welcoming of differing opinions.