It’s hard to miss the controversy in our country recently as the President called a former NFL player a “son of a bitch” for taking a knee during the National Anthem in protest of police brutality toward African-Americans. In response, more players in a number of sports took a knee while others stood arm in arm in support during the playing of the National Anthem.

Not long after the President’s profanity, some public schools issued edicts about standing during the National Anthem. The schools threatened players with removal from sports teams if they exercised their First Amendment right to protest.

The Supreme Court famously stated in Tinker v. Des Moines Independent School District, “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.” This remains true today, although the Court has limited the Tinker holding in subsequent cases. But even with those later restrictions, public school students are allowed to engage in free speech, including protest speech. A school district may only restrict speech when the restriction is “reasonably related to a legitimate pedagogical interest.” In other words, schools do not have to tolerate speech that is inconsistent with its educational mission. Moreover, schools do not have to permit speech that disrupts the school environment. Even with these restrictions, public school students have substantial rights to speak – including speaking by taking a knee. Districts that threaten students with removal from school activities for engaging in this or other forms of protest speech risk expensive litigation over that decision.

Craig Henry PLC is committed to preserving students’ First Amendment right to free speech in the school environment. If you or someone you know has been disciplined or threatened with discipline for exercising their right to speak, please call our office to discuss the situation.