From Hoodies to Kneeling During the National Anthem: The Colin Kaepernick Effect and Its Implications for K-12 Sports

Author:Laura Rene McNeal
Position:Law and Policy Analyst at the Charles Hamilton Houston Institute at Harvard Law School and Associate Professor of Law at the University of Louisville Brandeis School of Law.
Pages:145-196
 
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From Hoodies to Kneeling During the National Anthem: The Colin
Kaepernick Effect and Its Implications for K-12 Sports
Laura Rene McNeal*
TABLE OF CONTENTS
Introduction .................................................................................. 146
I. Social Activism Enters the World of High School Sports:
The Colin Kaepernick Effect ........................................................ 152
A. The Rebirth of Social Activism in Sports: The Evolution
of the Kaepernick Effect ........................................................ 153
B. The Emergence of Social Protests in High School
Sports and Disciplinary Consequences .................................. 158
II. Freedom of Expression Jurisprudence: K-12 Perspective ............ 163
A. Mind to Mind Framework: West Virginia v. Barnette ........... 167
B. The Gold Standard: Tinker v. Des Moines ............................. 170
C. Birth of Censorship: Bethel School District
No. 43 v. Fraser ..................................................................... 173
D. Curriculum Matters: Hazelwood School District et al. v.
Kuhlmeier .............................................................................. 178
E. Guiding the Moral Compass: Morse v. Freder ick ................. 181
III. Uncharted Waters: Safeguarding Students’ Free
Speech Rights ............................................................................... 185
A. Free Speech Shortfalls: A Call for Change ............................ 186
B. Tinker-Spence Standard: A New Constitutional Standard
for Free Speech in K-12 Schools ........................................... 189
C. Limitations of Proposed Tinker-Spence Standard.................. 194
Conclusion .................................................................................... 195
Copyright 2017, by LAURA RENE MCNEAL.
Law and Policy Analyst at the Charles Hamilton Houston Institute at
Harvard Law School and Associate Professor of Law at the University of
Louisville Brandeis School of Law. I am grateful to my colleagues, Cedric Powell
and Tanya Washington, for their valuable comments and insights. I would like to
thank the stellar Louisiana Law Review staff for their professionalism a nd
thoughtful comments throughout the editorial process. Finally, a special thanks to
my husba nd, Montel Bratcher, for his unyielding suppor t throughout this
publication process.
146 LOUISIANA LAW REVIEW [Vol. 78
INTRODUCTION
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.”—
Justice Robert Jackson1
Sports are an essential part of American society. For example, baseball
often is referred to as Americas pastime.2 Every summer, ballparks across
the nation are filled with energetic fans of all ages cheering for their
favorite team. Many of our childhood memories encompass little league
games, high school sporting events, and watch parties for the Super Bowl
and the World Cup. Our childhood idols often are sports legends, such as
Hank Aaron, Babe Ruth, and Muhammad Ali. Many Americans view
sports as a venue to teach cherished values, such as teamwork, dedication,
and work ethic.
Despite the multitude of sports available to play and watch, football is
arguably one of the most popular and lucrative sports in the world. The
National Football League (NFL) reached $14 billion in revenue in 2016
alone.3 High school football programs are an integral part of the NFL
landscape because they serve as a training ground and pipeline for children
with aspirations of playing in the NFL.4 As a result, high school student-
athletes often mimic the very players they seek to become. Students wear
their favorite players jersey, team colors, and other types of paraphernalia.
But what happens when students mimic their sports idols social protests
during sporting events? What happens when social activism enters the
world of youth sports? High school players across the nation illuminated
this issue when they began to mimic a NFL player, Colin Kaepernick, and
1. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).
2. Micah C hen, America’s Pastime: 20 Reasons Baseball Will Always Hail
Over Football , BLEACHER REPORT (Apr. 25, 2011 ), http://bleacherreport.com
/articles/676720-americas-pastime-20-reasons-why-baseball-will-always-hail-over
-football [https://perma.cc/ZYM3-TJMW].
3. Daniel Kaplan, NFL revenue reaches $14B, fueled by media, SPORTS
BUSINESS DAILY J., Mar. 6, 2017, at 4.
4. See, e.g., Edwin Weathersby, NFL Pipeline: Long Beach Poly Second
Among High Schools for Most Active NFL Players, FOX SPORTS WEST (Sept. 5,
2017, 5:59 PM), http://www.foxsports.com/west/stor y/nfl-pipeline-long-beach-
poly-sec ond-a mo ng -high-s ch ools- fo r-most-ac ti ve -nfl-player s-091517
[https://perma.cc/D6W4-JW7J]; Julian Sonny, The 10 High Schools That Pr oduce
The Most NFL P la yer s in Ame ri ca , EL ITE DAIL Y (M ay 27 , 20 14) ,
https://www.elitedai ly.com/sports/10-high-schools-prod uce-nfl-players-america
/608500 [https://perma.cc/7M6G-WS4L].
2017] FROM HOODIES TO KNEELING DURING THE NATIONAL ANTHEM 147
his teammates act of kneeling during the national anthem in protest of
police brutality against African-American males.5 Although the First
Amendment protects Kaepernicks symbolic act, many high school players
across the nation did not receive the same constitutional protection for
mimicking his national anthem protest.6 On the contrary, school leaders
usurped the young athletes constitutional rights by disciplining student
protesters through school and game suspensions.7 First Amendment
jurisprudence clearly provides students in K-12 public schools with freedom
of expression rights as long as such acts do not create a material disruption to
the school learning environment.8 Under the Material Disruption Standard,
school administrators are not permitted to limit a students First Amendment
rights unless the expression causes a substantial disruption to the school
learning environment or interferes with the rights of others.9 Courts defer to
5. B ob Cooke, High School Athlete s Join Colin Kaepern ick In An them
Protests; Angry PA An nouncers Don’t, FORB ES (Sept. 11, 2016, 10:05 PM),
https://www.forbes.com/sites/bobcook/2016/09/11/high-school-athletes-join-colin-
kaepernick-in-anthem-protest-angry-pa-announcers-dont/#65179ea77ea1 [https://per
ma.cc/7STT-U5QQ].
6. U.S. CONST. amend. I (“Congress shall make no law . . . abridging the
freedom of speech . . . .”); Knowles Adkisson, In Louisiana High School Players Link
Arms, But Do Not Kneel Du ring the Anthem, WAS H. POST (Sept. 29, 2017) ,
https://www.washingtonpost.com/national/in-louisiana-high-school-players-link-
arms-but-do-not-kneel-during-anthem/2017/09/29/9f893f40-a564-11e7-ade1-76d0
61d56efa_story.html?utm_term=.91ae8c2b378e [https://perma.cc/9NLD-NSY6].
This Article highlights the controversy surrounding high school athletes being
disciplined for kneeling during the national anthem. A Louisiana principal issued a
letter to students threatening to suspend any student from the game or team that knelt
during the national anthem. The American Civil Liberties Union of Louisiana issued
a statement expressing that the principal’s national anthem policy violated a 1943
Supreme Court case, West Virginia v. Ba rnette, 319 U.S. 624 (1943), which held that
public schools may not coerce students to stand during patriotic rituals. This Article
highlights the growing debate regarding Kaepernick being afforded his constitutional
right to engage in symbolic protests during the national anthem while high school
students are being denied those same rights. See infra Part I.A.B.
7. Christine Hauser, High Schools Threaten to Punish Students Who Kneel
During the National Anthem, N.Y. TIMES (Sept. 29, 2017), https://www.nytimes
.com/2017/09/29/us/high-school-anthem-protest.html?mcubz=1 [https://perma.cc
/C9SJ-J9N6].
8. Clay Calvert, Tinkers Midlife Crisis: Tattered and Transgr essed but Still
Standing, 58 AM. U.L. REV. 1167, 1168 (2009); see also Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969).
9. Tinker, 393 U.S. at 513.

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