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Do California students have the right to take a knee at games?

On Behalf of | Mar 21, 2022 | Education Law

Taking a knee during the national anthem is a way to protest racial inequality and police brutality in the United States. Former 49er Colin Kaepernick took a knee for years during his NFL career, and many, many other professional athletes have followed suit. Rapper Eminem even honored the movement during his recent Super Bowl halftime show.

It’s a powerful symbol. Can junior high and high school student athletes take a knee in protest – or can they legally be punished or prevented by their schools?

The law is clear in California. Students cannot legally be compelled to take part in patriotic exercises such as standing at attention during the national anthem. Furthermore, students are free to take part in non-disruptive protests, even during sporting events. These rights are protected by the First Amendment, Article I, Section 2 of the California Constitution and California law.

Does this apply to all schools in California?

Yes. Regardless of whether the protest occurs during a mandatory school activity or at a voluntary extracurricular activity, students in California are free to protest in a non-disruptive way. This applies to:

  • Public schools
  • Private schools
  • Charter schools

Is taking a knee during the national anthem unpatriotic?

Some people believe in good faith that taking a knee during the national anthem is unpatriotic. At the same time, there are many others who disagree.

Ultimately, freedom of speech and expression mean little unless they include the right to engage in speech or expression that others do not agree with.

In a seminal case on students’ First Amendment right not to say the Pledge of Allegiance, the U.S. Supreme Court articulated the idea that true patriotism can never be forced.

“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,” the opinion in West Virginia Board of Education v. Barnette, which was issued during World War II.

What should schools do when students engage in non-disruptive protest?

Instead of trying to suppress it, schools could take a student’s desire to protest as a good sign that they are engaging in the world. It is part of our core constitutional values that the citizenry be engaged, even when that means disagreeing with the status quo.

Educators should reflect on the value of free speech and expression, and then consider taking the opportunity to foster discussion of the issue in contention.

What can I do if my school tries to stop me from taking a knee?

You may wish to ask your school to reconsider, considering that students do have free speech rights during school and extracurricular activities. If it will not, you may wish to hire a lawyer to help make your point.

Leigh Law Group represents students in civil rights cases throughout California.

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