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Refusal to stand for the national anthem & the 1st Amendment

49ers quarterback Colin Kaepernick's refusal to stand for the national anthem has garnered widespread media attention over the past month. Fellow athletes have followed suit in solidarity, and the movement has even spread to high school football players. In a few states such as New Jersey, Alabama, and Massachusetts, students' refusal to stand during the national anthem has been met with harassment, threats, and in some cases disciplinary measures from school administrators. Can a school legally punish a student for exercising his or her First Amendment right to protest?

In short, yes. Every citizen has a fundamental First Amendment right to freedom of speech; however, that right is not absolute. The government (including any of its agents or actors, such as a public school) may limit certain types of speech, including obscenity, child pornography, and speech that incites violence. Additionally, public schools may regulate speech that materially and substantially disrupts classwork as set out by the Supreme Court's decision in Tinker v. Des Moines Independent Community School District.

But, Tinker also decided that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (Tinker, 393 U.S. at 506). Thus, in order for a school to regulate the high school players' protests, the refusal to kneel must be regarded as substantially and materially disruptive to classwork.

So far, no such challenge has arisen. Because citizens only have First Amendment protection against the government, private schools are not subject to the same requirements. The superintendent of the Catholic Schools Diocese in Camden, New Jersey told administrators that players who chose not to stand for the national anthem may suffer consequences such as game or team suspensions.

Kaepernick's refusal to stand for the anthem is a protest against the treatment of African-Americans in the United States. Kaepernick 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." His protest, while controversial to many, has opened a dialogue that has trickled down to high school students. If a public school chooses to regulate a student's refusal to stand during the national anthem, it could be challenged in court on constitutional grounds. While no outcome is certain, it is unlikely that a court would find such a protest materially or substantially disruptive to classwork.

The content of this website including, but not limited to, this posting, has been prepared by Budris Law Group for inform ational purposes only and should not be construed as legal advice. The information you obtain at this site is not, nor is it intended to be, legal advice. The material posted on the website is not intended to create, and receipt of it does not constitute, a lawyer-client relationship, and readers should not act upon it without seeking professional counsel. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship.

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