California Court Supports Student’s Right to Kneel During the National Anthem

A California federal court recently granted a student’s motion for preliminary injunction, holding that the student athlete was entitled to kneel during the playing of the national anthem as part of the pregame ceremonies. V.A. v San Pasqual Valley Unified Sch Dist, Case No. 17-cv-02741-BAS-AGS (SD Cal, Dec. 21, 2017). The court ruled that the act of kneeling was protected speech, which the district’s superintendent could not prohibit because kneeling during the anthem was unlikely to substantially disrupt the school’s activities or interfere with other students’ rights. While this decision is not binding on Michigan schools, it provides guid­ance on how a court may scrutinize a school’s response to anthem protests.

V.A., a high school senior and varsity football and basketball player, kneeled during the national anthem at a home football game to express his “personal feelings and concern about racial injustice in our country.” One week later, V.A. again kneeled during the na­tional anthem at an away football game. In response to V.A.’s protest, the other school’s students directed racial slurs toward V.A., threatened to force V.A. to stand for the national anthem, and sprayed a water bottle at V.A.’s classmates.

After the incident, the superintendent from V.A.’s district issued rules directing student athletes to stand during the playing and singing of the national anthem. The rules prohibited kneeling during the anthem and threatened that a student could be removed from a team for a violation. The rules applied both to home and away games. According to the superintendent’s memorandum, the rules were to remain in effect until further notice. The superinten­dent distributed the rules to parents and students and placed them on the district’s website. The superintendent later claimed that the rules were abandoned.

At the same time, the board of education issued a draft policy that prohibited students or staff members from engaging in politi­cal activism, including kneeling, sitting, or other forms of political protest, during the playing or singing of the national anthem. The board voted to table the draft policy for potential consideration at a future meeting. V.A. challenged the district’s rules by filing a pre­liminary injunction motion, alleging that the district violated his First Amendment rights. Under the test developed by the U.S. Supreme Court in Tinker v Des Moines Indep Sch Dist, 393 US 503 (1969), school officials may only pro­hibit student expressive activity if it is likely to materially and substantially disrupt school activities. It is not sufficient to rely on a rule or policy that bars certain types of speech without first examining the speech’s potential disruptive effect.

The California court, analyzing the conduct under Tinker, held that kneeling on a field or a basketball court during the national anthem is protected speech. The court further found that silently kneeling during the national anthem during pregame ceremonies is not likely to cause a substantial disruption or material interference with school activities. On both occasions when V.A. kneeled, there was no substantial disrup­tion. The court concluded that the incidents that occurred at the away football game were not severe enough to constitute a substantial disruption. Further, the likelihood of an incident happening again was re­duced because the other school was taken off the district’s schedule.

The court also found that the superintendent’s rules and the board’s draft policy could cause irrepa­rable harm to V.A. and other student athletes. The district was unable to show the rules were ever aban­doned, and the rules clearly stated that they would remain in effect until further notice. The court also noted that there was no evidence demonstrating that the board would not adopt the draft policy at a later date.

This decision is consistent with advice provided by Thrun Law Firm in an e-blast sent on September 28, 2017 regarding this same topic. School officials should carefully assess any student expressive activity that may implicate First Amendment rights. Further, it is important to determine whether any facts will es­tablish that the student’s activity is likely to disrupt the school environment. If any rule is adopted to sup­press student protest, courts likely will find that the rule is inconsistent with the First Amendment if the protest is not likely to disrupt the school environment.