Opinion: Banning Preps from Protesting Wrongheaded

Job One in any educational institution should be to stimulate learning, not stifle dissent.

High school sports is an extracurricular activity. But we call its participants student-athletes, and their learning shouldn't be limited to the classroom.

A student-athlete exercising the constitutional right of freedom of speech or expression in a peaceful and nondisruptive way should not only to be allowed, but encouraged, in a nation born out of dissent.

And yet nearly half of Virginians would support a rule prohibiting high school athletes from sitting or kneeling in protest during the national anthem, as some National Football League players have done, according to a recent poll by the L. Douglas Wilder School of Government and Affairs at Virginia Commonwealth University.

In a random sampling of Virginia adults, 45 percent of the respondents favored such a prohibition; 50 percent opposed it.

Frankly, I suspect the numbers wouldn't change much if the ban extended to pro athletes.

There's a long tradition of punishing athletes for dissent, whether it's stripping Muhammad Ali of his heavyweight title for refusing his Army induction during the Vietnam War or drumming John Carlos and Tommie Smith out of the 1968 Olympics following their gloved-fist protest of U.S. racial injustice.

Colin Kaepernick, then a quarterback for the San Francisco 49ers, followed in that tradition in 2016, kneeling during the anthem to protest racial injustice and police brutality. He's now without a team.

His critics called Kaepernick's protest disrespectful to the military, even though it was a U.S. Army veteran who encouraged Kaepernick to kneel rather than sit. President Donald Trump called for owners to fire players who won't stand during the anthem.

The poll results are highly partisan: 67 percent of Democrats and 62 percent of minorities oppose a kneeling ban; 50 percent of whites and 65 percent of Republicans support it.

Henry L. Chambers Jr., a professor of law at the University of Richmond, said in an email that he's uncertain there's an easy legal answer on this issue "because the Supreme Court has given us a couple different principles.

"One is that students do not lose constitutional rights when they go to school or are at school events. Another is that school administrators have the latitude to make sure that students do not disrupt school activities," Chambers said.

"More generally, schools treat sports as extracurricular activities in which students have no right to participate, and coaches tend to be given significant latitude in how they run their programs. All that suggests that a student who kneels when the coach or the administration does not want (the student) to kneel likely will not have an easy time of it, even if the student has the right to kneel."

Claire Guthrie Gasta ñaga, executive director of the American Civil Liberties Union of Virginia, was unequivocal.

"Public high schools cannot 'ban' students from kneeling any more than they can 'ban' students from sitting during the Pledge of Allegiance," she said, citing a Virginia State Code section that states "no student shall be compelled to recite the Pledge if he, his parent or legal guardian objects on religious, philosophical or other grounds to his participating in this exercise."

"Public schools are the government and the government cannot 'abridge' their students' freedom of speech and expression, unless they can show that the students' behavior is disruptive to the academic process," said Gastañaga, citing the 1969 Supreme Court decision Tinker v. Des Moines.

In that case, Mary Beth Tinker, a 13-year-old, was among several students sent home from school after refusing to remove black armbands they wore in protest of the war in Vietnam. The court ruled 7-2 that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

"A student who kneels on the field is not being disruptive any more than a student who chooses to sit every morning when the Pledge of Allegiance is required to be recited in Virginia public school classrooms," Gastañaga said. "I would hope that no bill has been introduced in the assembly this year precisely because our lawmakers understand that such legislation would be unconstitutional on its face."

Any coach inclined toward authoritarianism should shed any my-way-or-the-highway impulse and submit to a teachable moment.

"The most important consideration may be that students should be encouraged to think about their actions," Chambers said. "I like the Highland Springs coach's suggestion that a student who wants to kneel should explain why."

Loren Johnson, coach of the state-champion Highland Springs football team, told a Richmond Times-Dispatch reporter in September that he'd allow a player to kneel during the anthem if a player had a meaningful reason; emulating an NFL player was not reason enough.

On Thursday, Johnson reiterated that position but said no team member had sought to kneel following "an open conversation" on the matter that allowed them to share their feelings.

"If you give kids the opportunity to share why, and they have valid reasons, based on what our Constitution says, they should have every right to do so," he said.

This debate up to now has been a trifle one-sided; only those who kneel have been called upon to explain their position. When dissent is constantly on the defensive, or even vilified, democracy is on a highway to the danger zone.

"Of course, I would love to hear students justify the flip side," said law professor Chambers. "That is, students who stand during the national anthem should also be asked to explain why they stand. I suspect that many would say that they stand because they are told to stand. Surely, many would also say they stand out of respect, but that just restarts the conversation about whether those who kneel are showing disrespect for (or true respect to) the country and the flag.

"That might trigger a really good conversation, i.e., what schools should do anyway," Chambers said.

Or as Johnson said of his athletes: "They should have the opportunity to learn at all times."

A civil and meaningful talk about racial injustice, the role of dissent in America and the meaning of patriotism?

Perhaps, someday, adults can have the same conversation.

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