The Pledge Cases and the National Anthem

Last week we reviewed court cases, including one from the Supreme Court, about students refusing to stand and recite the Pledge of Allegiance.  The case law is very clear.  Students can symbolically express their opinions by refusing to join in this daily ritual.

So what about the National Anthem at the sporting event?  There was a spirited discussion of this on the listserv operated by the Council of School Attorneys recently. There was a definite  consensus among the lawyers.  The school attorneys were of the opinion that football players or cheerleaders who choose to “take a knee” during the Anthem are expressing themselves in a way that the First Amendment protects.  “Taking a knee” for the 90 seconds it takes to play the Star Spangled Banner is very much akin to Mary Beth Tinker walking into her middle school in Des Moines, Iowa in 1965 wearing a black armband. It is a symbolic expression that, of itself, is not disruptive.

I join in that view.  I think coaches would be wise to use the entire controversy as an excellent opportunity for a teachable moment.

However, there is one good argument that could be made to prohibit any symbolic protests during the playing of the Anthem.  That would be that the football player, while wearing the team’s uniform and preparing to represent the school, is not—at that time and place—free to express his own personal opinion about the matter.

I think that’s a valid argument.  However, we got a decision from the Court of Appeals in Beaumont that would reject that argument.  This is from the long lasting case of the Kountze ISD cheerleaders.

The cheerleaders have been putting Scripture verses, often of an overtly Christian nature, on the banner that the team runs through at the start of the game.  They are wearing their cheerleader uniforms. They are representing the school.  The team symbolically endorses the message on the banner by charging through it in aggressive, go-get-em football attack mode.  The cheerleaders in Kountze eschew the violent language customarily used on these banners (“Smash the Hornets; Kill the Tigers”) and prefer sentiments along the lines of “But thanks be to God, which gives us victory though our Lord Jesus Christ.”

According to the elected judges on the Court of Appeals in Beaumont, those cheerleader banners are the private, constitutionally protected expression of the cheerleaders. So if they want to express a religious message, they have the right to do so.

I have not yet met a school lawyer who agrees with that decision, but there it is.

So consider: if cheerleaders have free speech rights to put whatever they want on the banner, surely football players have the right to silently take a knee as the Anthem plays.

The cheerleader case is Kountze ISD v. Matthews, decided by the Court of Appeals in Beaumont on September 28, 2017.  We found it at 2017 WL 4319908.


Tomorrow: It’s Toolbox Tuesday!!