During a speech in Alabama on September 22, President Trump made some comments that provoked a number of professional athletes to kneel or sit – or even stay in the locker room – during the national anthem on Sunday’s NFL games. In a nutshell, Trump said that NFL owners should fire their players who disrespect the U.S. flag. This statement generated repercussions among professional athletes, who enjoy the same constitutional rights to freedom of speech that others in the country enjoy. Kneeling during the national anthem (which gained the hashtag #TakeTheKnee on Twitter), although not verbal speech, is a form of nonverbal speech or expression that is protected under the First Amendment.

Whereas the U.S. Constitution provides the U.S. government with certain powers, the Bill of Rights restricts those governmental powers by providing people within the United States with the named rights, such as freedom of speech. Therefore, constitutional rights must be honored by governmental actors, including public school districts. Because the NFL is not a public employer, it does not have a constitutional obligation to allow these freedoms.

Public school districts, however, are governmental actors. Because the government must allow constitutional rights, our question then becomes, do student athletes have the same constitutional rights to freedom of speech? Or more simply, can student athletes #TakeTheKnee?

Participation in extracurricular activities is a privilege and not a right protected by law. Under Ohio law, boards of education are permitted to adopt a policy authorizing district employees who coach a pupil activity program to prohibit a student from participating in the program under conditions of the policy. Such conditions may include requirements such as maintaining a certain minimum grade point average or acting in a manner that does not bring discredit or dishonor upon the school. If a student violates the policy, he or she may be removed from the activity program without due process requirements.

A school may not impose a condition that violates a student’s constitutional rights. Although students do not necessarily have the same constitutional rights in the school as they do in public, they do not lose their constitutional rights when they enter the school building.

The Third Circuit Court of Appeals once heard two separate court cases centered on free speech rights of the First Amendment. In both cases, students were disciplined for off-campus social media posts. The court issued two opposing opinions on the same day in these two similar cases. This led to the full court panel rehearing the two cases. The full panel held that the speech was protected by the First Amendment in both cases. The takeaway from these cases is that courts are often willing to protect a student’s free speech rights – even if the speech is offensive and hurtful – if a school cannot prove that the speech sufficiently disrupted the educational process.

In the 1969 landmark case Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court heard a case regarding whether students’ political actions would be protected under the free speech clause of the First Amendment. Several students wore black armbands in protest of the Vietnam War, despite the school’s policy prohibiting students from wearing these armbands. The Court held that the students’ wearing these armbands was considered protected speech under the First Amendment and declared the school’s policy unconstitutional. The Court noted that this action led to no disruption of or interference with the educational environment.

Going back even further, the U.S. Supreme Court issued an opinion on Flag Day (June 14) in 1943 that a state may not compel unwilling school children to salute and pledge allegiance to the flag of the United States. Furthermore, any discipline brought on by “an act of disrespect, either by word or action” was also prohibited. Ohio even has a statute (R.C. 3313.602) that states that no student shall be required to participate in the pledge of allegiance.  The bottom line is that schools may not require students to participate in acts of patriotism, such as recitation of the pledge of allegiance or participation in a certain manner during the national anthem.