This article was originally published on October 3, 2017 on the Anti-Defamation League website and can be found here.
By Jinnie Spiegler, Director of Curriculum at Anti-Defamation League
In August 2016, then-NFL San Francisco 49ers quarterback Colin Kaepernick decided to take a stand about racial injustice by refusing to stand for the National Anthem at football games. He spent much of the season either sitting or kneeling during the anthem. Fast forward to the 2017 football season where the controversy emerged again when on a Sunday in September, more than 200 NFL players took a knee during the Anthem.
This recent controversy over NFL players and others taking a knee has led to discussions among schools and the education community about the rules and guidelines for students who choose to not participate or peacefully protest the Pledge of Allegiance or National Anthem.
While public schools* grapple with how to handle students who choose to peacefully protest racial inequity or other issues important to them, another conversation has unfolded: students’ First Amendment rights. There seems to be confusion about what the law is and whether public school students can be punished or denied the right to participate in extracurricular activities for engaging in peaceful protest.
The constitutional rights of public school students not to participate in the Pledge of Allegiance or National Anthem are clear. The 1943 Supreme Court ruling states that public schools cannot coerce students to salute the American flag or recite the Pledge of Allegiance if it conflicts with their beliefs. Students do not lose their constitutional rights to free speech by walking through the schoolhouse doors, and school officials violate those rights by punishing students for participating in peaceful, non-disruptive protests like kneeling during the National Anthem.
Students and their families may need advice about how to approach their First Amendment rights, especially when their school tries to compel them to participate or impose consequences for not doing so. Here is ADL’s advice for school administrators, parents/guardians and students, in addition to a letter that can be presented to schools:
What Students Can Do
- Reflect on whether you want to participate in the Pledge and National Anthem and your reasons for doing so. If you decide it’s important to abstain from participating or to peacefully protest, clarify your reasons for yourself and for others who may ask and who support you.
- Talk with your parent/guardian about your reasons for not participating and/or peacefully protesting.
- If you are an athlete and want to peacefully protest on the field but concerned that there will be athletic scouts in the audience (and you are seeking admission and/or scholarships) who may not look favorably upon your protest, weigh all these factors carefully. It is a very personal decision and one in which you should consider all the factors, seeking input from family, coaches, school staff and other important people in your life. You may decide that you will wait until college or beyond to engage in peaceful protest on the field when your message will reach more people. You can also consider engaging in other forms of activism that are separate from school and sports. If you decide to go ahead with your peaceful protest on the field, consider ways you can make your position and reasons clear without speaking directly to the scout.
- If you feel the school is violating your First Amendment rights, reach out to the ADL.
- If friends or classmates ask why you are not participating or peacefully protesting, talk with them about your reasons for doing so.
- Prepare yourself emotionally for those who will disagree and review ADL’s resources on civil discourse.
- If you want to act as an ally to someone who takes a kneel, doesn’t participate or peacefully protests, consider ally behaviors such as: talking with them about their decision, not judging them, letting them know you support them or speaking up if others criticize them.
What Parents/Guardians Can Do
- Talk with and support your child in their First Amendment rights and also make them aware of the limitations in K-12 public schools (e.g. a school does not have to publish everything in the school paper nor can they engage in political protests that materially or substantially disrupt school activities).
- If your child expresses that they want to peacefully protest the Pledge or Anthem, ask them to explain their reasons so you have a better understanding of their perspective and will be in a better position to support them.
- If necessary, write a letter to your child’s teacher, coach and/or school administrator explaining their non-participation and acknowledging your support of their peaceful protest.
- If you feel the school is violating your child’s First Amendment rights, reach out to the ADL.
What School Administrators Can Do
- Communicate students’ First Amendment rights about the Pledge of Allegiance and National Anthem to classroom teachers, athletic coaches and all other school staff now and at the beginning of the school year.
- Communicate with parents in writing that confirms students’ First Amendment rights and what you have done to inform school staff. Make this an annual part of back-to-school information.
- Support students’ decisions to exercise their First Amendment rights in relation to the Pledge, National Anthem, etc.
- Encourage educators (especially Social Studies teachers) to teach students about the First Amendment and our freedoms
* Private Schools: Because the Constitution only applies to government entities and officials, private schools are not directly bound by the First Amendment. (The only exception is the state of California which has a unique statute that applies the First Amendment to private schools as well). Because the First Amendment does not apply, private schools have much more leeway to limit speech. Students should review their school’s student handbook including any policies about speech and student conduct. These materials should provide guidance about how freedom of expression will be treated on campus.