MICHEL MARTIN, HOST:
So let's pick up where the Barbershop left off. We've been talking about professional athletes taking a knee for the national anthem to protest police violence. A recent letter issued by a high school principal in Louisiana reminded us that younger athletes who consider this form of protest are also facing considerable pushback. The principal of Parkway High School in northwest Louisiana threatened this week to cut its student athletes from teams if they don't, quote, "stand in a respectful manner," unquote, during the entire national anthem. So while league rules may govern what professional athletes may or may not do on the sidelines, we wondered what public schools may demand of their students. So we called Frederick Schauer. He is a professor of law at the University of Virginia with an expertise in the First Amendment, and he was kind enough to join us from his office in Charlottesville. And we started our conversation by asking him whether public school students have First Amendment free speech rights.
FREDERICK SCHAUER: The short answer is yes. There's a noteworthy 1969 Supreme Court case called Tinker v. the Des Moines School District in which the Supreme Court said that neither students nor teachers shed their constitutional rights to freedom of speech at the schoolhouse gate. It dealt with students who were wearing black armbands to protest the Vietnam War. Since then there have been three other Supreme Court cases on student speech. The Supreme Court has said that it is important to defer to the judgments of school administrators. So unfortunately, the law is not entirely clear on this question, but the short answer is students do have First Amendment rights in the schools. The circumstances under which they can be limited are not as clear as they were in 1969.
MARTIN: Well, to that point, we reached out to Bossier Parrish School Board about the Parkway High School and whether the school has considered the constitutional question. The spokeswoman, Sonja Bailes, directed NPR to the letter that the Bossier School superintendent Scott Smith wrote earlier this week that stated, quote, "it is a choice for students to participate in extracurricular activities, not a right. And we at Bossier Schools feel strongly that our teams and organizations should stand in unity to honor our nation's military and veterans," unquote. So the question of whether it's an extracurricular activity versus something that takes place within the confines of the school day - is that relevant?
SCHAUER: Probably not. The curricular, extracurricular distinction does not really make very much of a difference. After all so-called extracurricular activities are part of the full school experience. And if the school can't do it, it probably can't do it with respect to extracurricular activities. But the other big issue is that whatever a court does or whatever a school district decides has to be, in the language of the First Amendment, content neutral. So we're not just talking about this form of protest. Whatever the school allows with this form of protest, it probably has to allow with respect to confederate flags, anti-Muslim statements on T-shirts, maybe Klan outfits, maybe swastikas. So a school district thinking about this will not just be thinking about the particular case but thinking about if we have a rule allowing this kind of protest, what is the range of political protests that will be permitted? That's a trickier issue.
MARTIN: So if you were advising the school district, what would you tell them to do?
SCHAUER: I would probably tell the school district that it's not worth the likelihood of litigation. There are lots of other ways to inculcate respect. This one may not be worth it.
MARTIN: That's Professor Frederick Schauer. He teaches constitutional law at the University of Virginia, and we reached him at his office. Professor Schauer, thank you so much for speaking with us.
SCHAUER: Thank you, happy to talk to you.
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