First Amendment lawyers: Lely can't force students to stand during national anthem
A Collier County principal who ordered students last week to stand during the national anthem violated U.S. Supreme Court rulings on free speech, First Amendment lawyers said Thursday.
“You will show absolutely no disrespect. You will stand. You will stay quiet. If you don’t, you’re going to be sent home and you’re not going to have a refund of your ticket price,” Lely High School Principal Ryan Nemeth said during a televised announcement to the school Friday. “It’s not only important that you show yourself some respect, but how about those athletes that are out there on the court or the field, or how about the folks who are singing or playing the national anthem.
“Let me say that one more time and be crystal clear: When that anthem is being played, you are to stand and you are to be quiet. What you do during that time is your own business. If you want to sing a song in your head, if you want to meditate, I really don’t care. What I do care is that you stand and stay quiet,” Nemeth said.
While Nemeth may have good intentions, his order is a violation of the Supreme Court's ruling in West Virginia State Board of Education vs. Barnette, a 1943 case involving Jehovah’s Witnesses, whose religion forbids worshiping or pledging allegiance to symbols. The court held in that ruling that government officials, which include public school employees, cannot demand participation in patriotic activities.
“Forcing someone to stand in reverence of the flag is what we call forced speech,” said Lawrence Walters, a First Amendment lawyer in Orlando.
Wayne Giampietro, the general counsel for the First Amendment Lawyer’s Association and a Chicago lawyer in private practice, agreed. He said the First Amendment provides the right to protest, and that includes students.
“They ought to teach these schools something about the Constitution,” he said. “They shouldn’t even be thinking of doing that.”
The ACLU of Florida contacted Jon Fishbane, the lawyer for Collier schools, to notify him that the principal's actions were unconstitutional. Fishbane said the issue of whether the district can require students to stand during the national anthem outside of the school day has not been questioned previously.
“This is a new area that we’re working through. It’s a complex legal issue and we try to honor as best we can students’ First Amendment rights provided their behavior is not disruptive," he said.
Later Thursday, Collier officials said Nemeth misspoke and informed students that he regrets using the word "stand."
Collier school board member Erika Donalds defended Nemeth in a Facebook post.
“Lely High School Principal Ryan Nemeth is an excellent role model for his students and a respected leader of his school! He is right to set expectations for appropriate respect and decorum at school events," Donalds wrote. "Students in Florida, by law, must have a note from their parents in order to sit for the pledge. Good for Mr. Nemeth for not allowing the trending disrespect to get out of hand under his watch.”
Nemeth’s announcement came in the wake of San Francisco 49ers quarterback Colin Kaepernick's protest against standing during the national anthem at his football games.
"I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color," Kaepernick told NFL Media. "To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder."
In response, the NFL issued a statement saying “players are encouraged but not required to stand during the playing of the National Anthem."
Following Kaepernick’s lead, both professional and high school athletes across the country have begun to opt out of standing during the anthem. News outlets from Louisville, Kentucky, to Montgomery County, Maryland, have reported local high school football players have chosen to take a knee while the national anthem is played.
It is unknown whether Nemeth’s announcement was prompted by any Lely student protest. Nemeth could not be reached for comment Thursday because the school district did not give him permission to speak to the media.
Collier County Public School spokesman Greg Turchetta said Nemeth's announcement came after a number of students were disruptive at a recent volleyball game while the national anthem was being played.
The Collier school system issued a statement Thursday.
“The district recognizes a student’s First Amendment right to express his/her thoughts and ideas. However, the law recognizes that such a right is not unfettered," according to the statement. "If the conduct or action taken, based on that right, is disruptive, then a school official can take corrective action. This would apply to in-school actions or behaviors at school-sponsored activities after hours.
"Thus, if a student paid to see a game and sat quietly in the stands during the national anthem, we would not remove the student. The student is seeing the game at that point as a member of the public. If, however, the student is disruptive during the anthem, or any time during the game, then, like a disruptive member of the public, we could ask them to be removed for the remainder of the game. With respect to students who participate in district athletic programs, consistent with Florida statutory requirements relative to the Pledge of Allegiance during the school day, we will work with parents to advise that if their sons or daughters do not participate in the Pledge of Allegiance or the national anthem, they will need to provide the principal with a written note excusing them.”
American Civil Liberties Union of Florida spokesman Baylor Johnson said the issue is a settled matter of law.
“The values that the national anthem symbolizes include the freedom every American has to engage in peaceful protest or even choose whether or not to participate in patriotic displays,” Johnson said. “What kind of a lesson about freedom is this school principal hoping to inspire in these students by telling them that patriotic expression is mandatory and peaceful expression is punishable? That’s not freedom, and it isn’t legal.”
Johnson said his organization has represented students in other districts regarding this matter, and he encouraged any Lely students concerned about their rights to contact the ACLU of Florida.
Lely senior Liam Schlichter, 17, said he and his friends have seen other students sit during the anthem but have never seen anyone be disruptive. Schlichter, a member of JROTC and son of Collier Citizen editor Jay Schlichter, attends many games.
“I understand where people are coming from,” he said, referring to his peers opting out of participating in patriotic tradition. “I don’t necessarily agree with it, but it’s everyone's right to decide whether or not they chose to recite the anthem.”
Mike Chionopoulos, a professor of constitutional law at FGCU and a practicing lawyer, was in the military for 27 years and considers himself “pro flag and pro anthem.”
Personal beliefs aside, Chionopoulos said the Constitution and its amendments not only apply to the government but were created to protect civilians from the people running it. This, he said, is the differentiating factor when comparing Kaepernick’s case with Lely’s.
“The NFL can tell Kaepernick, ‘We’re going to keep our $6 million and you can go home.’ But when the principal said he’s going to make students stand, now you’ve got a problem because he’s acting on behalf of the state.”