Taking A Knee: The Rights Of Students To Peaceful Protest

Silent protest is a longstanding tactic used to call attention to issues and highlight the need to address injustice.  Such protests, including sit-ins at segregated lunch counters during the civil rights movement of the 1960s and today’s football players taking a knee during the national anthem, can produce powerful images and raise strong emotions.

            When the silent protest is by a student – kneeling before the national anthem, refusing to stand for the pledge of allegiance – teachers and administrators often find that they lack guidance on how they can and how they should respond.  There are two different questions at play.  First, can school personnel discipline or reprimand a student for protesting?  A school’s ability to do this is clearly limited by a student’s constitutional rights.  Second, and perhaps more challenging, how can schools take a moment of protest and turn it into an opportunity for learning and dialogue? 

            The ACLU believes that both questions need to be answered, and is doing so in related advisories. This one addresses the rights of students to free speech and freedom of religion, and what actions they are entitled to take without fear of punishment, harassment, or interference.  The related advisory “From Protest to Dialogue” provides suggestions and examples of best practices on how schools can advance learning and dialogue around highly emotionally charged issues like race and racism.

            The landmark U.S. Supreme Court ruling in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), provides a clear and eloquent discussion of the First Amendment rights of students to silent protest.  It came in the midst of the Vietnam War.  Emotions were running high on both sides when school administrators learned that some students intended to wear black armbands to school to protest the war.  The administration immediately adopted a rule banning black armbands.  Three students wore armbands to school and were suspended from school.   The Supreme Court found that action to be an unconstitutional violation of the students’ First Amendment rights.

             The Court confirmed that the wearing of armbands, like kneeling during a ceremony or pledge, is the type of symbolic speech that is protected by the First Amendment.[1]  It rejected the school’s argument that suppressing the speech was necessary to prevent disruption.  The Court powerfully stated that:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate..[2]

. . . .
 [I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, ... and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.[3]
. . . .
. . . .
When [a student] is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without ‘materially and substantially interfer(ing) with the requirements of appropriate discipline in the operation of the school’ and without colliding with the rights of others.[4]

The holding of Tinker that peaceful protest and symbolic speech are protected, and that students may not be punished because the administration disapproves of the message or fears the debate that will ensue, has been reaffirmed repeatedly by the courts.[5]  Particularly important are the reaffirmations that students may not be excluded from their classrooms or otherwise harassed because they choose to exercise their rights of free speech.[6] 

Although many of the current protests relate primarily to social and political issues, it is important to remember that students similarly have a  constitutional right to freedom of religion and can refuse to participate in activities that are contrary to their beliefs; the school must accept the student’s declaration of those beliefs.[7] 

This doesn’t mean that students are not subject to any restrictions.  Active disruption such as shouting down a teacher or damaging property can clearly be regulated,[8] as can speech promoting illegal drug use[9] as well as lewd and indecent speech.[10] Peaceful political speech, however, even on topics of great sensitivity, is not only protected in public schools, it is essential to the training of our future leaders.

‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' Shelton v. Tucker, (364 U.S. 479), at 487 (81 S.Ct. 247, 5 L.Ed.2d 231). The classroom is peculiarly the ‘marketplace of ideas.’ The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, (rather) than through any kind of authoritative selection.’[11]
Schools thus must respect and protect speech, even on difficult topics. 
At the same time, schools should foster civic competence and responsibility.[12]  That includes fostering the ability to engage in thoughtful and respectful discussion on difficult issues that often give rise to silent protest.  Suggestions on how to move from protest to dialogue can be found in our Curriculum Resources.
[1] Tinker, 393 U.S. at 505.
[2] Id. at 506.
[3] Id. 508-09.
[4] Id. 512-13.
[5] See, e.g.
[6] See, e.g., Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1268–69, 1276-77 (11th Cir. 2004); Frain v. Baron, 307 F.Supp. 27, 33–34 (E.D.N.Y. 1969).
[7] “The First Amendment thus guarantees to the plaintiffs the right to claim that their objection to standing is based upon religious belief, and the sincerity or reasonableness of this claim may not be examined by this or any other Court.” Shelton v. Fannin, 221 F.Supp 766, 755 (D. Ariz. 1963), citing United States v. Ballard, 322 U.S. 78 (1944), Cantwell v. Connecticut, 310 U.S. 296 (1940). See also, West Virginia Board of Education. v. Barnette, 319 U.S 624, 642 (1943).
[8] See, e.g.,
[9] Morse v. Frederick, 551 U.S. 393 (2007).
[10] Bethel School District v. Fraser, 478 U.S. 675 (1986).
[11] Tinker, 393 U.S. at 512, quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).
[12] No Child Left Behind Act of 2001, Subpart 3, sec. 2341-43.