A high school football player in California will be permitted to continue kneeling as a form of protest after court intervention late in December 2017.
The student, a high school senior at San Pasqual Valley High School, a public high school in California, is a player on the varsity football and basketball teams. During the 2017 football season, the student began to kneel silently during the National Anthem. The student said his decision to kneel was aimed at expressing his, “personal feelings and concern about racial injustice in our country.” He stated that he wanted to provide a reminder that “racial injustice in our country” exists, “which we must not tolerate.” He plans to kneel for the upcoming basketball season.
In September, the student knelt at a home football game without incident; however, the following week, during an away game in Arizona, some trouble occurred after the game. A few students from the Arizona school approached students from the California school, made racial slurs, threatened to force the plaintiff to stand, and sprayed a water bottle at the school’s students, getting one cheerleader wet.
In response to that incident, the superintendent issued rules prohibiting students and coaches from doing any kneeling, sitting, or similar types of political protest. The athletic director met with the student and other team members to inform them of the new rules, and a copy of the new rules was distributed to all students and parents the next day.
On December 21, 2017, the federal District Court for the Southern District of California (9th Circuit) issued a preliminary injunction against the school’s rules. The Court found, among other holdings, that the student here is likely to succeed on the merits of his complaint because, under the standard created by the U.S. Supreme Court in Tinker, a school cannot limit a student’s right to free speech if the speech is unlikely to substantially disrupt the school’s activities or learning or interfere with other students’ rights. Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503, 513-14 (1969).
As to the actions of the Arizona students, the court found that they did not amount to a “substantial disruption of or material interference with school activities,” nor did they “interfere with the students’ safety.” Here, the students’ threats were to “force” the student to stand, and the only action taken was water being tossed from a water bottle, getting one student wet. There was no evidence of a fight during or after the game. The court further noted that the likelihood of a repeat incident was decreased because the school had requested that the Arizona school be removed from its football schedule.
The key takeaways for school leaders from this case are that schools may limit student political speech or protests only if the speech is likely to disrupt the school environment, and only if the school can demonstrate to the court’s satisfaction that the disruption would be substantial.
The original opinion can be found by clicking here.