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Taking a knee for free speech

If students kneel during the national anthem, can their schools punish them for disruptive expression?

Updated: October 21, 2021

This hypothetical case study is brought to you for free by the Free Speech Center at the Middle Tennessee State University.

Before class (30 minutes)

Read/watch:

Class time needed

30 minutes

Learning objectives

At the conclusion of this activity, participants will be able to:

  • Define the central issues around free speech and free expression in public schools
  • Discern the difference between public and private school expression protections
  • Outline students’ and employees’ rights to free expression in schools and administrators’ responsibilities and limits

Hypothetical:

You are a student reporter for your high school newspaper, sent to cover your school’s homecoming basketball game. You attend a public school but the game is against your biggest rival, the private Catholic school in town.

You arrive at the gym and take your seat near the announcer, so you’ve got a great view of the home team bleachers and both teams’ benches. You’re excited to cover the game because you got a tip that the two team captains are good friends, having played club ball together since they were young.

But before the game even starts, members of both teams take a knee during the national anthem, engaging in the silent protest against police brutality popularized by former NFL player Colin Kaepernick. An assistant coach on your team also takes a knee next to the players; the other coaches remain standing.

People in the crowd don’t seem to know how to react. Most people are standing up with their hats off and their hands over their hearts. Some are singing. A few boos are heard, and one teacher from your school stands up and extends both middle fingers to the players on the floor for the entirety of their protest.

The game goes on after the silent protests, and you visit with the fans, players and coaches for your story. You discover that the two friends coordinated the effort to get their teammates to kneel, but that they are expecting repercussions from the schools — they all feel they are well within their free speech rights.

Later, you read in the local paper that the Catholic school has suspended its team captain for a week for coordinating the protest, and reprimanded the other players. Now there are calls for the team captain of your public school to be suspended “for disrespecting the flag.” One conservative radio host in town called for the kneeling coach to be fired, while a liberal radio host called for the teacher who flipped off the students to be fired or reprimanded.

Discussion questions

  1. How should the principal and superintendent of your public high school react to calls for them to suspend your school’s team captain?
  2. What about the teacher who flipped off the students, or the coach who kneeled — are the public school officials within their rights to take personnel action against the two employees?
  3. Was the Catholic school within its rights to suspend its basketball team captain?
  4. What if your team captain (like all other athletes at your school) signed an agreement holding them to higher standards of conduct than other students?
  5. Do public school students have more rights to free expression than NFL players? Why or why not?
  6. The First Amendment specifically addresses the freedom of “speech,” but no words were uttered by the players. Are their actions still considered protected?

Case briefs:

West Virginia Board of Education v. Barnette

Tinker v. Des Moines Independent School District

Pickering v. Board of Education