In this 4-part series, we are discussing how parents can teach their children to protest responsibly. In Part 3, we will discuss student’s legal rights, as it pertains to protesting.

What Are Students’ Legal Rights?

Are schools allowed to take disciplinary action against students who choose to protest peacefully? Do students’ First Amendment rights protect them at school?

Student Rights in the Classroom

For the most part, students do have the right to sit or kneel if they are not disrupting the operations of the school. Many of the disciplinary actions above were imposed by individual teachers, who were then reprimanded by their school districts. The National Council Against Censorship (NCAC) has written letters to schools, speaking out against policies that limit students’ freedom of expression.

The executive director of the American Civil Liberties Union of Louisiana, Marjorie Esman says, “The law does not permit schools to forbid students from expressing their views, and all schools should be on notice that these policies are in fact unconstitutional.”

Indeed, there is legal precedent for this situation. One Supreme Court case, in 1943, centered on a group of Jehovah’s Witnesses who had been expelled from school for not reciting the Pledge of Allegiance. The Court ruled that students could not be forced to stand for the pledge if it conflicted with their religious beliefs.

“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,” wrote Justice Robert Jackson in his majority opinion.

In December of 1965, thirteen-year-old Mary Beth Tinker and a group of friends decided to protest the Vietnam War by wearing black armbands on their arms at school. When Mary Beth wore her black armband on December 16^th, she was asked to remove it. She refused and was sent home.

Four other students were suspended, and the students couldn’t return to school until they removed the armbands. The ACLU represented Mary Beth and the other students in a legal battle that went all the way to the Supreme Court.

The Supreme Court ruled in Tinker v. Des Moines on February 24, 1969. In a 7-2 decision, the Court declared that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Unless it disrupted the educational process, schools could not censor student speech.

Private schools, on the other hand, do not receive funding from the government and have more freedom to select their own rules and policies. In New Jersey, for instance, the Diocese of Camden, which runs a Catholic school system, released a statement against protests. It read, “We are not public institutions, and free speech in all of its demonstrations, including protests, is not a guaranteed right.”

Student Rights on the Court or Field

The right of student-athletes to protest at games is a bit murkier.

Rachael Jones, a legal research fellow and First Amendment scholar at UNC’s Center for Media Law and Policy, explains that student-athletes are “held to a higher standard because it becomes the school’s message and not the student’s message” if they choose to protest. Student-athletes wear the school’s jersey and represent the school in the community.

Jones says that the response to student-athlete protests will vary by school and region. Other experts agree that participating in sports is a privilege, not a right, and this privilege can be revoked if students don’t comply with school policies.

Frank LoMonte, former executive director of the Student Press Law Center, disagrees. LoMonte says that schools’ authority to discipline students for non-disruptive protests is not heightened if students are partaking in a privilege. He argues, “You can’t condition a privilege on forsaking your constitutional right any more than you can condition a right or a benefit.”

Courts have determined that public institutions can’t withhold privileges, such as employment if employees exercise their right to free speech. LoMonte believes that this should apply to schools as well.

The bottom line?

Public school students have the right to sit or refuse to recite the Pledge of Allegiance. Private school students, on the other hand, are bound by the rules and policies of their schools. Student-athletes may exercise their First Amendment rights on the field, but the official response to their protests may differ by school.

Well, that’s it for Part 3. In Part 4, we will discuss how parents can teach students to protest responsibly.

Click here to read all 4 parts of this series.