Sports | October 9, 2017 9:27 am

Supreme Court’s Take on Kneeling During the National Anthem

Public schools kicking kids off football teams for protesting is unconstitutional.

Making High School Football Players Stand for Anthem Is Unconstitutional
(Lower Colorado River Authority/Flickr)

The peaceful pre- and in-game protests against social and racial injustice in the National Football League are still a hot-button issue more than a year after they started on the San Francisco 49ers’ sideline.

Americans remain divided over the protests, which have slowly trickled down to the high school level. Just last week, a pair of African-American high school students in Texas were kicked off their team for protesting. High school players in Tennessee have been told they must stand during the anthem, a principal in Louisiana threatened to kick players off the team if they didn’t stand, followed by a superintendent in the same state calling for 34 schools to comply with the no-kneeling decree.

But is it constitutional to ban kneeling during the national anthem? Not so, notes Rolling Stone‘s David S. Cohen, who cites the 1943 Supreme Court case West Virginia State Board of Education v. Barnette, which barred public schools from expelling students who were practicing Jehovah’s Witnesses, who didn’t stand or recite the Pledge of Allegiance, because it’s against their religion. It was deemed unconstitutional to do so—and even done during wartime, when patriotism was at its apex.

In fact, writes Cohen, the decision had little to do with the students’ religion, but rather, their First Amendment rights. In the decision, the justices wrote: “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.”

The only public education institutions where this would not apply would be private schools.