Last year, San Francisco 49ers quarterback Colin Kaepernick made headlines for his refusal to stand for the National Anthem. NFL players, professional athletes in other sports and even Stevie Wonder recently followed Kaepernick’s example, motivated in part by President Trump’s call for team owners to fire and otherwise silence players who participate. As football season kicks off at high schools around the country, districts may wonder how to respond.

Courts have consistently ruled that schools can’t force students into acts of patriotism. More than 70 years ago, the U.S. Supreme Court addressed the issue when they examined the compulsory recitation of the Pledge of Allegiance in public schools. In 1942, the West Virginia State Board of Education adopted a regulation that required all teachers and pupils to “participate in the salute honoring the Nation represented by the Flag.” The resolution allowed schools to expel students who refused to stand for the Pledge of Allegiance on the basis that refusing to stand constituted an act of insubordination.

The United States Supreme Court struck down the school board’s resolution, finding that forcing students to stand for the Pledge violated the First Amendment. Specifically, the court held that “the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

Many state courts have subsequently struck down requirements that students stand for the Pledge. In Ohio, a statute specifically provides that students may not be required to participate in the recitation of the pledge of allegiance, nor may the district permit the intimidation of any student by other students or staff aimed at coercing participation.

Districts may prohibit otherwise protected expression, however, if a school official has reason to believe that the expression will cause a substantial disruption or material interference with school operations. A district also may have more control over student speech and actions when a student is involved in extracurricular activities that involve a purpose related to speech or expressive conduct, like being a cheerleader or a member of the color guard. School administrators should review incidents on a case-by-case basis, in consultation with board counsel, to determine whether discipline is appropriate or whether it would be wise to consider alternatives to formal discipline, such as meeting with the student and his or her parent to discuss the school’s concerns.

The actions of so many people who are major influences on young people ensure that this issue is in front of Ohio’s students, who may have questions about what they are seeing and hearing. Districts are encouraged to use the events as teachable moments in their classrooms. Education Week offers curriculum suggestions that include assignments and discussions about race and policing in America, lessons about the First Amendment, and conversations about the nature of protest and public influence.

If you have general questions regarding this issue, please call the division of legal services. For specific legal advice, please contact your district’s legal counsel.

*OSBA wishes to thank Olentangy High School student and OSBA mentee Hayden Toftner for his contributions to this article.

Posted by Sara C. Clark on 9/28/2017