I believe students have the constitutional right to kneel in silence during renditions of the national anthem.

This is relevant in that the Bossier Parish School Board of Louisiana and the diocese of Rockville center in New York are warning their students to stand during renditions of the national anthem. The school authorities say that students who fail to comply will face disciplinary action.

I don't believe school authorities have the legal authority to do so.

Don't get me wrong, I believe there is a pathetic, self-absorbed quality to many of those participating in the ongoing anthem protest movement. Devoid of introspection, many of these protesters preach the cause of social justice but wield the indiscriminate weapon of national discord. Still, the precedence of case law is clear: "censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the state is empowered to prevent and punish."

So said Supreme Court Justice, Robert Jackson, in deciding 1943 case of West Virginia State Board of Education v. Barnette. There is no "clear and present danger" that justifies disciplining anthem protesters.

The operative facts of that case carry striking relevance to the present situation. After all, in Barnette, the Supreme Court ruled 6-3 that public schools cannot compel students to salute the flag and recite the pledge of allegiance: the court thus affirmed a right to silent protest in relation to national symbols. As Jackson explained in his decision, "To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind."


Yet because the current anthem protest represents not simply disagreement with a belief, but a viewpoint on a political issue of exigent public interest; the intersection of race and criminal justice, compelling students not to kneel would mean government endorsement of the belief that the kneeling movement is wrong. That would wholly contravene Justice Jackson's warning that it is not "open to public authorities to compel [an individual] to utter what is not in [that individual's] mind."

As I say, I do not support the kneeling protesters. Still, the right of students silent participation in that protest seems clear.

If litigation follows and a relevant case gets to the Supreme Court, I expect an 8-1 ruling against the school boards.