What the Supreme Court Says About Sitting Out the National Anthem

Some public schools are telling student athletes they can't kneel during the anthem – but that's unconstitutional

Several Aurora Central High School football players take a knee during the national anthem in October 2016. Credit: Nick Cote/Redux

When the president uses what used to be called his "bully pulpit" – but now is called "Twitter" – to attack a person or an issue, of course it has much broader consequences. For instance, it's no surprise that after campaigning on a travel ban focused on Muslims and selectively bringing attention to terrorist attacks only when perpetrated by Muslims, anti-Muslim hate crimes have spiked in the U.S. Likewise, after beginning his campaign by calling Mexicans rapists and drug dealers and endlessly touting his idea for a fairytale border wall, attacks on Mexicans and Mexican-Americans have gone up.

So of course the same thing happened with President Trump's obsession with NFL players and the national anthem. For those who have been on Mars for the past few weeks, Trump has tweeted repeatedly attacking the mostly black NFL players who have knelt during the pre-game national anthem as a show of protest against police brutality. In response, a much larger number of football players knelt or engaged in some form of protest during the pre-game national anthem over the past two weeks.

As a result, there has been endless commentary criticizing the president for his comments denigrating the nation's history of protest and the value of free speech. On the flip side, Trump's supporters have argued NFL players must respect the flag and country during the national anthem. And, showing there's no depth to stupidity, the always shocking Pat Robertson linked the protests to the Las Vegas shooting and said players should stop protesting in light of what happened there.

The messages the president has sent about protest, police brutality, racism, free speech and obedience are incredibly troubling. But so far, he's just been directly targeting a very small group of people.

But we know there's always going to be a trickle-down effect with Trump – and indeed, now students are paying the price. Within the last two weeks, a high school football coach in Tennessee told his players they have to stand for the national anthem, a Louisiana principal threatened to remove student athletes from their teams if they didn't stand during the national anthem and the superintendent of the entire parish, who supervises almost three dozen schools, then said he supported this policy and suggested it would apply to all of his schools.

Before more students' rights are threatened, this needs to stop. Not only does it go against basic American principles to threaten students about speaking up – it's also blatantly unconstitutional for a public school to do this. The Supreme Court made this clear in 1943 when it decided the landmark case of West Virginia State Board of Education v. Barnette. In that case, school children who were Jehovah's Witnesses refused to salute the flag because it was against their religion to do so, and as a result they were expelled or threatened with expulsion.

The Supreme Court very forcefully declared that punishing students for not participating in the Pledge of Allegiance was unconstitutional. The decision had nothing to do with the students' religion and everything to do with their constitutional right to freedom of speech. As the Court wrote, in language that has become one of the most important principles of modern free speech law:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."

Whether for students in homeroom being forced to stand for the Pledge of Allegiance, or student athletes being forced to stand for the national anthem, the principle remains the same: Public schools cannot force them to participate. As is clear at the end of the above quote, there are no exceptions. (Private schools are different, as the Constitution doesn't apply to them.)

Other parts of the opinion are worth noting as well. The Court did not ignore the fact that the pledge incites deep emotions, especially during wartime (when the case was decided). To the justices, that just meant that the students' free speech rights mattered even more: "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."

The Court also explained that true patriots welcome dissent and protest, even when it touches the flag. To the Court, true patriots recognize that the U.S. is strong enough to appeal to people on its own, without mandates from above: "To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds."

Often in the law, especially constitutional law, rules are unclear and there is a lot of wiggle room. That's what makes my day job teaching these issues interesting. But here, the answer is stunningly simple. Public schools cannot force students to participate in the flag salute or national anthem. Schools doing so in the wake of the current national conversation about NFL players are inviting an expensive lawsuit, a lawsuit they will lose.