Legal Aspects to Student-Athlete Protests at School Events

A student-athlete informs the coach of intentions to kneel during the National Anthem to protest recent government actions that the student believes are not appropriate or just. The coach informs the student that he or she will be kicked off the team. The student goes to the athletic director to complain. What can the athletic director and the school do?

The question of whether a high school athlete can protest at a school event brings into play student rights, school authority and Constitutional law. Because public high schools are public, the First Amendment applies. The Supreme Court has developed a framework that balances student expression against the school’s interest in maintaining order, discipline and its educational mission.

The following must be examined: (1) whether the athlete’s conduct constitutes protected speech, (2) which student-speech doctrine applies, and (3) how forum analysis shapes the level of Constitutional protection.

First, expressive conduct such as kneeling during the national anthem is generally considered symbolic speech protected by the First Amendment. The Supreme Court has long recognized that nonverbal conduct can be expressive if it is intended to convey a particularized message and the likelihood is great that the message will be understood.

Political protest – particularly during the national anthem – is within the very core of protected speech/expression. Therefore, the high school athlete is likely engaging in speech.

However, context matters as public schools are unique environments.

In Tinker v. Des Moines Independent Community School District, the Supreme Court famously held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In that case, students wore black armbands to protest the Vietnam War. The Court ruled the speech was protected because it did not cause a material and substantial disruption to school operations. The “Tinker test” remains the standard for student speech: Schools may restrict student expression only if schools can reasonably forecast a substantial disruption.

Since this high school athlete is protesting quietly – kneeling silently during the anthem – under Tinker, the school must demonstrate more than anticipation of causing discomfort, controversy or public backlash. There must be evidence of material disruption, such as fights, threats or significant interference with the event. Courts generally view political speech as highly protected under Tinker.

But not all student speech is covered solely by Tinker. The Supreme Court carved out additional categories. In Bethel School District v. Fraser, the Court upheld discipline for lewd and vulgar speech at a school assembly, recognizing a school’s authority to prohibit plainly offensive expression inconsistent with its educational mission.

In Hazelwood School District v. Kuhlmeier, the Court held that schools may regulate school-sponsored speech – such as a student newspaper – if the regulation is reasonably related to “legitimate pedagogical concerns.”

Finally, in Morse v. Frederick, the Court permitted discipline for speech reasonably viewed as promoting illegal drug use at a school-supervised event.

This high school athletic event presents a bit of a hybrid scenario. It is at a school-sponsored event, occurs on school property (or under school supervision), and involves students representing the school. An athlete on the field is arguably engaged in school-sponsored activity. The school might contend that the athlete’s protest is school-sponsored speech subject to Hazelwood rather than pure private speech under Tinker. If the protest occurs while the athlete is in uniform, standing with the team, and participating in a pregame ceremony, a court could conclude that observers might reasonably perceive the protest as being representative of the school’s position.

However, courts often distinguish between speech that is genuinely school-sponsored – such as content published by the school – and student expression that occurs during a school event but is not part of the school’s message. Kneeling during the anthem is not typically scripted or directed by school officials. Therefore, most courts would likely treat it as personal expression governed by Tinker rather than Hazelwood. The fact that the event is school-sponsored does not automatically transform all student conduct into school speech.

The analysis becomes more complex if the athlete’s participation in the ceremony is considered part of their official role. Schools could argue that athletes agree to team rules and codes of conduct that limit certain expressive activities during games. Courts often give deference to schools in regulating extracurricular activities, reasoning that participation in athletics is voluntary and subject to additional rules. Nonetheless, participation in extracurricular activities does not eliminate constitutional protection. A school cannot condition participation on the surrender of fundamental rights without a very strong justification.

The Supreme Court’s recent student-speech decision in Mahanoy Area School District v. B.L. reinforces the principle that schools bear a heavy burden when regulating student political speech. Although Mahanoy concerned off-campus speech on social media, the Court emphasized that political and religious expression lies at the heart of the First Amendment and merits heightened protection. This reasoning would likely apply to a peaceful protest at an athletic event.

In addition to the student-speech framework, forum analysis provides another lens for evaluating restrictions. Forum analysis determines the extent to which the government can regulate speech based on the type of property involved. Government/Public/School property is categorized into traditional public forums, designated public forums, limited public forums and nonpublic forums.

A high school football stadium is not a traditional public forum like a public park or sidewalk. It is government-owned property primarily dedicated to school activities. When the school opens the stadium for a game, it may create a limited public forum for certain types of speech – such as cheering or school-approved announcements – but it does not necessarily open the venue for unlimited expressive activity.

In a limited public forum, the government may impose reasonable, viewpoint-neutral restrictions consistent with the forum’s purpose. If the school allows some expressive conduct (e.g., cheerleaders displaying signs, bands performing patriotic music), it cannot discriminate against a student-athlete’s protest solely because officials disagree with the viewpoint. Viewpoint discrimination is almost always unconstitutional. If the school punishes the athlete specifically because the protest criticizes government policy or social injustice, that action would likely fail in court.

However, the school may impose content-neutral rules to ensure order and safety. For example, a rule requiring all players to remain standing at attention during the anthem could be framed as a uniform team protocol. The Constitutional question would then hinge on whether that rule is truly viewpoint-neutral and reasonably related to legitimate interests, such as team unity or orderly ceremony, or whether it is a pretext for suppressing dissent.

Another dimension is the government speech doctrine. If the pregame ceremony is considered school speech – organized and controlled by the school – then the school has broad authority to determine its content. The Supreme Court has held in cases involving government (read: public school) messages that when the government itself is speaking, it is not subject to First Amendment constraints in the same way it is when regulating private speech. The key question becomes whether the athlete’s silent protest is attributable to the school or clearly private expression. Silent kneeling by an individual athlete is far more likely to be viewed as private speech occurring within a government-managed event.

Ultimately, whether the high school athlete can protest depends on context and consequences. If the protest is peaceful, non-disruptive and clearly personal expression, the First Amendment strongly protects it under Tinker. Schools cannot suppress speech merely to avoid controversy, a potential disruption or to appease possible (or even probable) community opposition. If, however, the protest actually disrupts the event, interferes with team operations or is reasonably perceived as school-sponsored speech inconsistent with the school’s pedagogical goals, the school may have stronger grounds to regulate it.

The challenges is that schools are subject to the First Amendment, and students do not lose the protections of the Constitution while in school or at school-sponsored events, but schools must also maintain order and fulfill their educational objectives and mission. Allowing peaceful protests by student-athletes reinforces constitutional values and models civic engagement, but at the same time, the courts recognize that schools require some flexibility to manage school-sponsored events.

In this case, the high school athlete will likely retain his or her right to engage in peaceful protest at a school event absent an actual significant disruption to the event. The forum analysis suggests that athletic venues are at best limited public forums, where viewpoint discrimination is impermissible but reasonable, content neutral regulations are allowed.

The decisive factors are actual disruption, whether it would be viewed as school-sponsored speech, and content and viewpoint neutrality of any regulation applied to the student’s speech. The First Amendment does not grant students unlimited expressive freedom in school settings, but it does provide significant meaningful protections – especially for political speech at the core of democratic discourse.

W. Scott Lewis, J.D., is a managing partner with TNG Consulting, chair of the National Association for Behavioral Intervention and Threat Assessment (NABITA) Advisory Board, and co-founder and advisory board member of the Association of Title IX Administrators (ATIXA). He also consults with and trains numerous sports organizations and governing bodies at all levels from high schools to Olympic-level athletes, trainers, coaches and staff, including working with the NCAA, NJCAA and the National Interscholastic Athletic Administrators Association (NIAAA). He is the legal counsel representative on the High School Today Publications Committee.