Commentary: Schools can't dictate whether students take a knee in protest; Supreme Court ruled in 1943 that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism ... or force citizens to confess by word or action"

The Courier-Journal, Oct. 4, 2017

Commentary: Constitution says students can 'take a knee' with or without school approval
James Miller and Joe Dunman

When President Trump attacked NFL players like Colin Kaepernick for their pre-game anthem protests, he reignited a national controversy stretching back to Kaepernick’s first act of dissent in August 2016.

Since Trump’s speech on Sept. 22, NFL players and team owners have responded by taking a knee, locking arms or simply not coming out onto the field while the anthem is playing. Although these additional actions may have diluted Kaepernick’s original message — a protest against unchecked, unaccountable, unjustifiable police violence — they have certainly kept the idea of a silent, peaceful anthem protest alive in the nation’s eyes.

Many high school students have followed suit, including several in JCPS.

The Courier-Journal’s Sept. 28 article, “Kentucky and Indiana high schools leave national anthem protest rules up to teams,” is timely, considering the new attention brought to Kaepernick’s protest in recent days. But even though the article examines local public school districts’ rules about pregame protests, it omits a larger and much more important point: the Supreme Court has already come down on the side of the students.

In its 1943 decision in the case of West Virginia State Board of Education v. Barnette, the court ruled in favor of students who refused to salute the U.S. flag or say the Pledge of Allegiance and were subsequently punished by school officials.

The majority ruling, written by Justice Robert H. Jackson, included this immortal declaration: “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.”

In other words, this issue was settled almost 75 years ago: public school students cannot be forced to participate in patriotic rituals, including reciting the Pledge of Allegiance, saluting the flag, or standing for the national anthem. At the most, schools can require students to sit quietly while others voluntarily participate.

To effectively safeguard students’ constitutional rights, JCPS should immediately send a memo to all administrators, teachers, and coaches summarizing the Supreme Court’s 1943 decision and clarifying that no adult employed by JCPS has the right to force students to “confess by word or act their faith” in whatever is currently “orthodox in politics [and] nationalism.”

James Miller is a journalism teacher and chair of the Journalism & Communication magnet program at duPont Manual High School. Joe Dunman is an attorney and assistant professor of legal studies at Morehead State University.

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