A few Rocky River High School marching band members have knelt during the national anthem at the first three home football games this season, continuing their support of the Black Lives Matter protest started last year.
The demonstrations last year upset some parents who saw it as a sign of disrespect and expressed their concerns on a community FaceBook page. So far this year, there’s been little reaction, but the school board addressed the issue at their meeting on Thursday.
The students are within their Constitutional rights to protest and there is nothing the district can do to stop them, school board lawyer Dan McIntyre said.
“The first question is, ‘Does the Constitution guarantee free speech rights to students in the schools?’” said McIntyre, a partner of Brindza McIntyre & Seed LLP. “The answer is yes. Everybody agrees on that.
“The next question is, ‘Is kneeling during the national anthem free speech?’” McIntyre continued. “The answer is yes, it's not pure speech of a spoken word or written, but it's symbolic speech.”
He told the school board they are unable to regulate kneeling by students during the national anthem unless the kneeling materially disrupts the school environment.
“If the disruption occurs because of the way people react to it, then it isn’t a disruption in the First Amendment way,” he said. “That’s a negative or bad reaction to it and it can’t be used against the person or people engaging in the speech.”
The student who is leading the protest, a junior, told a friend interviewed by West Life that he did not want to be interviewed or have his name used because he feared for his safety.
“They know they have a platform there and they know they’ll be seen by the community because football games are a big deal in Rocky River,” said his friend, a female student who did not want her name used. “It’s to amplify what they believe in.”
She is close friends with members of the band and spoke of the harassment and bullying that occurred last year following the band kneeling during the national anthem. She said the harassment came from fellow students, parents of students and community members.
She has not seen much harassment this year following the kneeling.
Band members started kneeling during the national anthem last football season following the Black Lives Matter protests that took place across the nation last summer. There was backlash online against the protest with comments on a Rocky River Facebook Page calling it “disgusting” and blaming the protestors’ parents for it happening.
At the first home game of the season on Aug. 20 against Midview High School, three band members knelt. The following home game, against Firelands High School on Aug. 27, about two dozen students knelt.
On Friday, one marching band student knelt at the home game against Lakewood.
“It’s an important lesson to be spread and unfortunately I can see racism more now that I’m older,” the 16-year-old student said. “I think a lot of people don’t want to talk about it because they don’t want to have to address it.”
She is proud of her friends who are partaking in the peaceful protest and said if she was in the band she would kneel with them.
The school board asked McIntyre to address the issue to get ahead of the issue.
McIntyre cited two U.S. Supreme Court cases regarding students’ free speech. The first was Tinker v. Des Moines in 1969 where students’ free speech rights were cemented in public schools.
The second case, Mahanoy Area School District v. B.L. was ruled on in June by the U.S. Supreme Court in favor of a high school cheerleader who posted foul language on social media while off school property after she failed to make the varsity cheerleading squad. School officials suspended her. But the court ruled in her favor.
McIntyre said schools may regulate the speech used in some contexts, such as:
It disrupts the learning environment.
It disrupts instruction or invades the rights of others.
Is vulgar, indecent, lewd or obscene.
Promotes illegal drug use.
If speech appears in school-sponsored publications (newspaper, yearbook).
Is serious or severe bullying or harassment.
If the speech threatens another student.
The disruptions are decided on a case-by-case basis, he said.
“The court has even said that even though people complain, even though people write letters, even though people feel heartfelt often at the message itself, it's not substantial disruption when it comes to the First Amendment,” McIntyre said. “That may be an unfortunate truth but it is a truth nonetheless and it's one that we're obligated to take into consideration when we look at these kinds of situations.”
He told the board of a similar case involving a football team who knelt during the national anthem in uniform at a game and the courts decided it was a violation to deny them the right to kneel.
“The courts will often say, the reason we hold the public schools to this standard is because we're supposed to teach democracy,” McIntyre said. “Part of our democracy is the First Amendment, it’s part of the US Constitution and it's a very important lesson.”
He told the board that if they are sued for violating the First Amendment they could be liable for compensatory damages and lawyer’s fees. The football team’s case cost the school district $200,000.
School board president Diana Leitch said the board will continue to follow advice.
“People might be interested in learning about (the first amendment) so we’ll continue to provide a safe forum for our students to express their views,” she said.
One parent addressed the board about the issue.
“Kneeling is protected, but is there another method that these young children can redirect and express themselves?” said parent Aaron Burnham, who addressed the board.
Rocky River High School Principal Rob Winton told the board that adults were working with marching band officers before last Friday’s game.
“We’re not prohibiting, but we want to start conversations on how it looks optically,” Winton said. “We want the students to come to a resolution on their own.”
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