A Winterhaven, California, high school student had a First Amendment right to kneel during the playing of the National Anthem before football and basketball games, a federal district court judge has ruled recently. The judge reasoned that the student’s act of kneeling was a form of speech protected by the First Amendment.
The controversy arose when the student, known in court papers as “V.A.”, knelt before the National Anthem at his San Pasqual Valley High School’s football game. No disruptions of any kind occurred as a result of this peaceful expression. V.A. contended that he knelt before the National Anthem to express his personal feelings about racial injustice.
V.A. also knelt at a second football game. That caused a few players on the other team to hurl racial slurs and throw a water bottle. As a result of this, the school district adopted an initial policy that read: “Kneeling, sitting or similar forms of political protest are not permitted during athletic events at any home or away games.”
At later basketball game, V.A. left the basketball court when the National Anthem began playing. He later sued the school district, alleging a violation of his First Amendment rights.
On December 21, 2017, U.S. District Judge Cynthia Bashant granted V.A. a preliminary injunction in V.A. v. San Pasqual Unified School District, preventing the school district from prohibiting V.A.’s peaceful political expression.
Judge Bashant relied chiefly on the U.S. Supreme Court’s seminal student-speech decision, Tinker v. Des Moines Independent Community School District (1969). In Tinker, the U.S. Supreme Court ruled that public school officials cannot censor student speech unless they can show that the student speech likely will cause a substantial disruption of school activities.
Judge Bashant analogized V.A.’s act of kneeling to protest racial injustice as similar to the wearing of the black armbands in Tinker. The school district argued that the racial slurs hurled by an opposing team qualified as a substantial disruption. Judge Bashant disagreed, writing that “while the Court does not minimize the impact of racial slurs and threats, the threats were minimal and did not lead to any physical violence.”
Judge Bashant’s opinion is well reasoned. As I explained in a recent piece, the First Amendment protects public school athletes’ right to engage in passive, peaceful political speech.
Public school officials should respect students’ First Amendment rights, not try to silence them.
David L. Hudson, Jr., the Ombudsman for the Newseum Institute First Amendment Center, is an author, educator, and public speaker. He is the author of numerous works on school law, including Let The Students Speak!: A History of the Fight for Free Expression in American Schools.