A student-athlete at a public school engages in a momentary, silent act of political protest on the sidelines of an athletic event. The school imposes punitive consequences, in the form of removal from the team.
The First Amendment violation couldn鈥檛 be clearer: A government agency takes official action in response to constitutionally protected political expression with the purpose of inhibiting future expression.
You can鈥檛 get this one wrong. So how come so many federal judges have?
Students鈥� free-speech rights are being put to the test at schools throughout the country as young athletes, emulating former NFL quarterback Colin Kaepernick and those inspired by him, kneel or sit during the national anthem to express frustration over the treatment of minorities by law enforcement.
The U.S. Supreme Court has told us鈥攎ore than once鈥攖hat public schools are bound by the First Amendment and must tolerate peaceful acts of political dissent, even on school grounds during school time. In 1943, the Supreme Court鈥檚 West Virginia State Board of Education v. Barnette decision recognized the right to abstain from the Pledge of Allegiance on religious grounds. In 1969, the Court expanded on this ruling in Tinker v. Des Moines Independent Community School District by deciding in favor of anti-Vietnam War protesters, whose wearing of black armbands to school in defiance of a school directive to remove them was found not to have materially disrupted school.
Logically, students鈥� right to express themselves on the sidelines of a ballgame should be even less impeachable than, as in the 1969 Tinker armband case, in the classroom during school hours. A school鈥檚 need to maintain quiet and concentration is greatest during instructional time; the same expression that might go unnoticed in the celebratory chaos of a football stadium would interrupt learning in math class.
Yet, schools that would not contemplate suspending a student for sitting out the Pledge of Allegiance during the school day are now insisting they can kick students off the football team if they refuse to stand for 鈥淭he Star Spangled Banner,鈥� as
As unsound as that legal argument is, schools do have some precedent on their side.
The U.S. Supreme Court has told us鈥攎ore than once鈥攖hat public schools are bound by the First Amendment and must tolerate peaceful acts of political dissent."
A handful of high-profile appellate court rulings over the past decade have denied legal challenges against school districts accused of infringing on students鈥� First Amendment rights, including from a cheerleader for silently refusing to cheer for a basketball player who was under criminal investigation for sexually assaulting her, a high school blogger for writing a post calling out her school鈥檚 administration in coarse terms, and high school athletes who were removed from the football team after
Courts have reached these outcomes by ignoring a half-century鈥檚 worth of unmistakably clear First Amendment doctrine that government agencies may not withhold or revoke even entirely discretionary 鈥減rivileges鈥� for the purpose of deterring or preventing speech.
Not every judge has been willing to grant schools such blank-check punitive authority.
In an Oct. 5 ruling, a U.S. district court in Pennsylvania directed a high school to reinstate a cheerleader who was from a local convenience store on a non-school day.
The judge found that the First Amendment status of speech is unchanged regardless of whether the punishment is suspension from school or merely the withdrawal of extracurricular 鈥減rivileges.鈥�
The mistaken notion that a privilege may be freely withdrawn even for speech-punitive reasons has been repeatedly contradicted by the highest court.
In its 1967 Keyishian v. Board of Regents of University of State of New York decision, the U.S. Supreme Court categorically swept away the 鈥渞ights-versus-privileges鈥� distinction in striking down a New York law that required government job applicants to swear a loyalty oath. As the justices emphasized in that case, any use of government authority that is meant to inhibit legally protected speech鈥攅ven the withdrawal of a purely 鈥渄iscretionary鈥� benefit, such as a job opportunity鈥攊s punitive enough to violate the First Amendment.
This principle was recently reaffirmed in a 2013 Supreme Court ruling that invalidated a condition attached to federal AIDS-education grants requiring grantees to express only government-approved messages about prostitution. Even though there is no 鈥渞ight鈥� to receive a discretionary grant,
Outside of school, everyone knows that the government cannot punish disfavored political speech by denying the speaker a 鈥減rivilege.鈥� A driver鈥檚 license is a privilege, for example, but that doesn鈥檛 mean the Department of Motor Vehicles could lawfully refuse to issue a license to a columnist who criticized the DMV.
Likewise, everyone knows that a school could not take away a discretionary privilege to punish a student for defying a coach鈥檚 order to convert to Judaism or to renounce allegiance to America, because those orders would be unconstitutional. So is an order for students to stand during the national anthem.
While losing a spot on the cheerleading squad or the football team may seem too trifling an injury for the proverbial federal case, no injury is too trivial in the adult world if the government鈥檚 motive is to deter speech鈥攏ot even canceling an employee鈥檚 birthday party, as the Supreme Court said in a 1990 opinion in Rutan v. Republican Party of Illinois.
Students are expected to absorb constitutional indignities that would be intolerable if inflicted on adults not because that鈥檚 consistent with constitutional doctrine, but because of judges鈥� increased willingness to disregard doctrine in a cynical effort to purge their dockets of cases they deem insignificant.
But it should not take a court order to compel public schools to respect鈥攐r even embrace鈥攂rief and harmless displays of enthusiasm for social causes. Schools regularly claim that they are in the business of producing informed, participatory citizens. Students with the fortitude to commit to a political stance, in defiance of high school鈥檚 formidable social pressure to conform, are tomorrow鈥檚 civic leaders.
