Sit Through the Pledge of Allegiance? Students Have That Right

One of the stories of the year has been NFL quarterback Colin Kaepernick and his decision to kneel through the National Anthem. The nationwide reaction to his act of protest has found its way into the classroom, leading many to wonder if students have the right to sit through the Pledge of Allegiance in school.

#TakeaKnee: NFL Protests During the National Anthem

In August 2016, Colin Kaepernick, a quarterback with the San Francisco 49ers, made the decision to sit, and later kneel, during the pre-game playing of National Anthem. The act was a willful protest to problems he perceived with American race relations. He told NFL Media:

“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. … To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”

Throughout the 2016 football season, other NFL, college, and even high school players joined the protest, and #TakeaKnee began to trend on social media. The start of the 2017 season proved that the matter was not going away, as players across the NFL chose to sit or kneel as the anthem played.

Controversy over his decision reached the highest levels, with even the President of the United States weighing in on his behavior. Donald Trump posted on Twitter, calling the protesters “sons of bitches” that should be fired.

High School Athletes Punished for protests

In October, 2017, a pair of Texas high school football players chose to join the protest. Cedric Ingram-Lewis, age 16, raised a fist as the national Anthem played at a Friday night football game. His cousin Larry McCullough, age 18, took a knee. In response, their coach, Ronnie Mitchem told them to turn in their uniforms. Ingram-Lewis told the New York Times:

“We had to get our message across: End racial injustice and the oppression of black people.”

Their coach said he had “let those guys do their protests” even though he found the demonstration offensive to people who served in the military. “But the rule was, if you did this protest, you wouldn’t be on the team.”

Even non-athletes are facing shame and discipline for their choice not to participate in patriotic expressions at school. India Landry and another student known as M.O. have recently filed a lawsuit after they were punished for for their choice to sit through the Pledge of Allegiance. Like Kaepernick and the other athletes, these students saw their silence as a protest against a country that wasn’t living up to the promise of the Pledge:

“We live in a country where there isn’t justice and freedom for all, and so I’m not going to stand for a pledge that says there is.”

But increasingly, these students faced pressure, criticism, and even overt discipline for their choice not to recite the pledge. One counselor suggested a student switch out of a class where the teacher insisted the student stand. Other administrators ignored or defended harassment by teachers and classmates. Some students were removed from class and told not to return to school until they were willing to participate in the Pledge of Allegiance.

Students and the right to protest

These teachers, administrators, and coaches are forgetting one important detail: students have a First Amendment right to sit through the Pledge of Allegiance or peacefully refuse to participate in other patriotic ceremonies.

The United States Supreme Court addressed this issue generations ago in 1943, in West Virginia State Board of Education v. Barnette. At the time, students were required to stand and salute the flag (in a gesture that is eerily similar to a Nazi salute) as they recited the Pledge of Allegiance. Failure to do so was considered “insubordination” and could cause students to be expelled from school until they agreed to participate in the Pledge.

The Supreme Court said that requiring students, particularly Jehovah’s Witnesses who have a religious objection to saluting the flag as a “graven image”, violated their First Amendment right to free speech. That is because the right to speak includes the right not to speak. Students in public schools must be allowed to remain silent, whether they choose to do so for religious reasons, like in Barnette, or in protest.

Landry’s lawsuit, and another filed by the same lawyer, seek to hold schools accountable for the recent push not to honor these students’ rights. By placing nationalism over free speech, these schools seek to impose order while silencing dissent within this public space. And that is unconstitutional.

Lisa J. Schmidt is an attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She represents students in disciplinary hearings and juvenile court. If your child is facing trouble at school, contact Schmidt & Long today for a free consultation.