Louisiana HS threatens to kick students off sports team if they sit for anthem

[NewYorkExpress]

http://usatodayhss.com/2017/la-hs-threatens-students-with-removal-from-the-team-if-they-dont-stand-during-anthem

You must be logged in to read this quote.

This has to be unconstitutional, right?

[Grumpier Than Uncle Joe]

FS

[Grumpier Than Uncle Joe]

This has to be unconstitutional, right?

No more than searching their lockers or their person at will, no.

[Cactus Jack]

The First Amendment was great while it lasted.

[Grumpier Than Uncle Joe]

The First Amendment was great while it lasted.

It existed in K-12 before?  Most schools ban any mention of God during commencement.

[Stranger in a strange land]

But muh free speech!!

The First Amendment was great while it lasted.

It existed in K-12 before?

Schools are not enclaves of totalitarianism: http://www.bc.edu/bc_org/avp/cas/comm/free_speech/tinker.html. I would assume that if wearing an armband is protected speech, kneeling during the anthem is too.

[Fight for Trump]

At this point, might as well make them do the Bellamy salute too.

[SteveRogers]

http://usatodayhss.com/2017/la-hs-threatens-students-with-removal-from-the-team-if-they-dont-stand-during-anthem

You must be logged in to read this quote.

This has to be unconstitutional, right?

Assuming that this is a public school district, then that's a big YES, it's unconstitutional.

The school will argue that this isn't a rule governing the whole student body, but rather a condition of participating in extracurricular activities. That voluntary consent argument works for things like random drug tests without cause, but it won't fly with a rule like this that amounts to blatant viewpoint discrimination in violation of the First Amendment.

[Tintrlvr]

http://usatodayhss.com/2017/la-hs-threatens-students-with-removal-from-the-team-if-they-dont-stand-during-anthem

You must be logged in to read this quote.

This has to be unconstitutional, right?

Assuming that this is a public school district, then that's a big YES, it's unconstitutional.

The school will argue that this isn't a rule governing the whole student body, but rather a condition of participating in extracurricular activities. That voluntary consent argument works for things like random drug tests without cause, but it won't fly with a rule like this that amounts to blatant viewpoint discrimination in violation of the First Amendment.

Ya. This clearly falls under the decision in Tinker v. Des Moines.

[TheSaint250]

http://usatodayhss.com/2017/la-hs-threatens-students-with-removal-from-the-team-if-they-dont-stand-during-anthem

You must be logged in to read this quote.

This has to be unconstitutional, right?

Assuming that this is a public school district, then that's a big YES, it's unconstitutional.

The school will argue that this isn't a rule governing the whole student body, but rather a condition of participating in extracurricular activities. That voluntary consent argument works for things like random drug tests without cause, but it won't fly with a rule like this that amounts to blatant viewpoint discrimination in violation of the First Amendment.

Ya. This clearly falls under the decision in Tinker v. Des Moines.

[#gravelgang #lessiglad]

http://usatodayhss.com/2017/la-hs-threatens-students-with-removal-from-the-team-if-they-dont-stand-during-anthem

You must be logged in to read this quote.

This has to be unconstitutional, right?

Assuming that this is a public school district, then that's a big YES, it's unconstitutional.

The school will argue that this isn't a rule governing the whole student body, but rather a condition of participating in extracurricular activities. That voluntary consent argument works for things like random drug tests without cause, but it won't fly with a rule like this that amounts to blatant viewpoint discrimination in violation of the First Amendment.

Ya. This clearly falls under the decision in Tinker v. Des Moines.

Tough to say for sure. An argument can be made that Morse v. Frederick applies, since a football game is a school sponsored event. The question is how narrowly to interpret Morse. If a school's right to restrict speech at school sponsored events extends only to speech promoting illegal drug use, it clearly won't apply. But if the principle from Morse holds that there's a distinction between school sponsored events and classwork/classroom speech, then this could conceivably skate.

[Tintrlvr]

http://usatodayhss.com/2017/la-hs-threatens-students-with-removal-from-the-team-if-they-dont-stand-during-anthem

You must be logged in to read this quote.

This has to be unconstitutional, right?

Assuming that this is a public school district, then that's a big YES, it's unconstitutional.

The school will argue that this isn't a rule governing the whole student body, but rather a condition of participating in extracurricular activities. That voluntary consent argument works for things like random drug tests without cause, but it won't fly with a rule like this that amounts to blatant viewpoint discrimination in violation of the First Amendment.

Ya. This clearly falls under the decision in Tinker v. Des Moines.

Tough to say for sure. An argument can be made that Morse v. Frederick applies, since a football game is a school sponsored event. The question is how narrowly to interpret Morse. If a school's right to restrict speech at school sponsored events extends only to speech promoting illegal drug use, it clearly won't apply. But if the principle from Morse holds that there's a distinction between school sponsored events and classwork/classroom speech, then this could conceivably skate.

No. The central issue in Morse v. Frederick was that the relevant speech was promoting illegal activity (drugs, in that case). It also involved that the speech took place technically off-campus, but all that was decided there was that the rules that apply on-campus also apply off-campus when connected to a school event. (The argument was raised by the students' lawyer that the school was less able to regulate the students off-campus because it was not acting in a disciplinary role off-campus, which was a plausible argument but bad facts for that finding.) Morse is not relevant.

[Gass3268]

Schools can't make kids stand for the pledge, so no way they can make them stand for the anthem.

[The Mikado]

I hope they don't have any Jehovah's Witnesses on the team.

[#gravelgang #lessiglad]

http://usatodayhss.com/2017/la-hs-threatens-students-with-removal-from-the-team-if-they-dont-stand-during-anthem

You must be logged in to read this quote.

This has to be unconstitutional, right?

Assuming that this is a public school district, then that's a big YES, it's unconstitutional.

The school will argue that this isn't a rule governing the whole student body, but rather a condition of participating in extracurricular activities. That voluntary consent argument works for things like random drug tests without cause, but it won't fly with a rule like this that amounts to blatant viewpoint discrimination in violation of the First Amendment.

Ya. This clearly falls under the decision in Tinker v. Des Moines.

Tough to say for sure. An argument can be made that Morse v. Frederick applies, since a football game is a school sponsored event. The question is how narrowly to interpret Morse. If a school's right to restrict speech at school sponsored events extends only to speech promoting illegal drug use, it clearly won't apply. But if the principle from Morse holds that there's a distinction between school sponsored events and classwork/classroom speech, then this could conceivably skate.

No. The central issue in Morse v. Frederick was that the relevant speech was promoting illegal activity (drugs, in that case). It also involved that the speech took place technically off-campus, but all that was decided there was that the rules that apply on-campus also apply off-campus when connected to a school event. (The argument was raised by the students' lawyer that the school was less able to regulate the students off-campus because it was not acting in a disciplinary role off-campus, which was a plausible argument but bad facts for that finding.) Morse is not relevant.

I apologise if I was unclear, but I was not advocating that Morse is relevant; only that it's a plausible point that the school here would make. And it would have sympathetic ears on the Court, most likely from Thomas, who wants to overturn Tinker in its entirety. Gorsuch is an unknown.

The point i was poorly conveying is that the Court appears to be drawing a distinction between 1A school cases that concern political speech in "class" (however that is defined) and in extracurricular activities (in the Court's parlance, school-sponsored activities). This pattern, to me, comes from Hazelwood School District v. Kuhlmeier and Morse. Hazelwood allows a school editorial discretion in a school newspaper and Morse, we've discussed. One need not squint to see a plausible argument that the Court is tentatively drawing a distinction between classes and extracurricular activities in student speech doctrine. Or at least isn't completely opposed to such an argument.

Much about Morse muddles its ability to be cited for really anything substantive, namely that the student who wrote the allegedly pro-drug banner didn't have any larger message and was basically trolling. Roberts's opinion said as much - that the student's speech, by his own admission, wasn't political or religious. Roberts also seems to hone in on safety as a reason for finding a reasonable interest for the principal in Morse to dissuade illegal drug use. So the issue becomes, how narrowly should Morse be read?

Of the majority in Morse, only Alito and Kennedy concurred separately advocating for a narrow reading of Morse constrained to only speech promoting illegal drug use. So while it's highly plausible that this Louisiana school principal would lose at the Court, there would probably be at least one, maybe two or three justices sympathetic to a reading of Morse that would extend to these facts.

[Tintrlvr]

http://usatodayhss.com/2017/la-hs-threatens-students-with-removal-from-the-team-if-they-dont-stand-during-anthem

You must be logged in to read this quote.

This has to be unconstitutional, right?

Assuming that this is a public school district, then that's a big YES, it's unconstitutional.

The school will argue that this isn't a rule governing the whole student body, but rather a condition of participating in extracurricular activities. That voluntary consent argument works for things like random drug tests without cause, but it won't fly with a rule like this that amounts to blatant viewpoint discrimination in violation of the First Amendment.

Ya. This clearly falls under the decision in Tinker v. Des Moines.

Tough to say for sure. An argument can be made that Morse v. Frederick applies, since a football game is a school sponsored event. The question is how narrowly to interpret Morse. If a school's right to restrict speech at school sponsored events extends only to speech promoting illegal drug use, it clearly won't apply. But if the principle from Morse holds that there's a distinction between school sponsored events and classwork/classroom speech, then this could conceivably skate.

No. The central issue in Morse v. Frederick was that the relevant speech was promoting illegal activity (drugs, in that case). It also involved that the speech took place technically off-campus, but all that was decided there was that the rules that apply on-campus also apply off-campus when connected to a school event. (The argument was raised by the students' lawyer that the school was less able to regulate the students off-campus because it was not acting in a disciplinary role off-campus, which was a plausible argument but bad facts for that finding.) Morse is not relevant.

I apologise if I was unclear, but I was not advocating that Morse is relevant; only that it's a plausible point that the school here would make. And it would have sympathetic ears on the Court, most likely from Thomas, who wants to overturn Tinker in its entirety. Gorsuch is an unknown.

The point i was poorly conveying is that the Court appears to be drawing a distinction between 1A school cases that concern political speech in "class" (however that is defined) and in extracurricular activities (in the Court's parlance, school-sponsored activities). This pattern, to me, comes from Hazelwood School District v. Kuhlmeier and Morse. Hazelwood allows a school editorial discretion in a school newspaper and Morse, we've discussed. One need not squint to see a plausible argument that the Court is tentatively drawing a distinction between classes and extracurricular activities in student speech doctrine. Or at least isn't completely opposed to such an argument.

Much about Morse muddles its ability to be cited for really anything substantive, namely that the student who wrote the allegedly pro-drug banner didn't have any larger message and was basically trolling. Roberts's opinion said as much - that the student's speech, by his own admission, wasn't political or religious. Roberts also seems to hone in on safety as a reason for finding a reasonable interest for the principal in Morse to dissuade illegal drug use. So the issue becomes, how narrowly should Morse be read?

Of the majority in Morse, only Alito and Kennedy concurred separately advocating for a narrow reading of Morse constrained to only speech promoting illegal drug use. So while it's highly plausible that this Louisiana school principal would lose at the Court, there would probably be at least one, maybe two or three justices sympathetic to a reading of Morse that would extend to these facts.

Okay, I'm not even denying that there are some justices who would overturn Tinker, but three justices do not a majority make.

Hazelwood v. Kuhlmeier is also not relevant because it is about the obligation of government to promote speech in its own publications. Generally speaking, the government is only obligated to promote speech in its own publications when it establishes those publications as "public forums". The court in Hazelwood held that a school could have a newspaper that was intended solely for pedagogical purposes and not as a public forum, which would allow that school, acting in the same manner as any other government, to forbid the paper from taking political stances. Thus, Hazelwood is not really a Tinker case at all, just clarifying that the same rules that apply to government generally also apply to schools. That is also clearly not relevant with respect to this situation since it is blatantly obvious that the government could not require a private citizen to stand during the anthem. Nor do I find a "trend" argument convincing since Hazelwood was decided in 1988 (before I was even born!) and was closer in time to Tinker than to Morse.

[Ban my account ffs!]

Yeah I would've sat out of principle.  Go f**k yourself, Scott Smith.  Maybe while you're wearing a flag tie.

[AtorBoltox]

Look, an actual first amendment violation! I'm sure the alt right 'free speech'  brigade will be up in arms about this!

[#gravelgang #lessiglad]

[snip, because way too long]

Okay, I'm not even denying that there are some justices who would overturn Tinker, but three justices do not a majority make.

Hazelwood v. Kuhlmeier is also not relevant because it is about the obligation of government to promote speech in its own publications. Generally speaking, the government is only obligated to promote speech in its own publications when it establishes those publications as "public forums". The court in Hazelwood held that a school could have a newspaper that was intended solely for pedagogical purposes and not as a public forum, which would allow that school, acting in the same manner as any other government, to forbid the paper from taking political stances. Thus, Hazelwood is not really a Tinker case at all, just clarifying that the same rules that apply to government generally also apply to schools. That is also clearly not relevant with respect to this situation since it is blatantly obvious that the government could not require a private citizen to stand during the anthem. Nor do I find a "trend" argument convincing since Hazelwood was decided in 1988 (before I was even born!) and was closer in time to Tinker than to Morse.

I'm certainly not advocating that a case would come out for the principal. On the contrary, it's fairly clear cut to me that there's not a ton of case law that would support the principal's actions. The principal would lose this case at least 80% of the time. The fifth circuit does some weird stuff and it wouldn't exactly be out of character for them to interpret the case law as I've described. I personally wouldn't, nor would I think it's reasonable to do so, but it's not outside the realm of possibility. That's really all I'm trying to get at!

[Tintrlvr]

[snip, because way too long]

Okay, I'm not even denying that there are some justices who would overturn Tinker, but three justices do not a majority make.

Hazelwood v. Kuhlmeier is also not relevant because it is about the obligation of government to promote speech in its own publications. Generally speaking, the government is only obligated to promote speech in its own publications when it establishes those publications as "public forums". The court in Hazelwood held that a school could have a newspaper that was intended solely for pedagogical purposes and not as a public forum, which would allow that school, acting in the same manner as any other government, to forbid the paper from taking political stances. Thus, Hazelwood is not really a Tinker case at all, just clarifying that the same rules that apply to government generally also apply to schools. That is also clearly not relevant with respect to this situation since it is blatantly obvious that the government could not require a private citizen to stand during the anthem. Nor do I find a "trend" argument convincing since Hazelwood was decided in 1988 (before I was even born!) and was closer in time to Tinker than to Morse.

I'm certainly not advocating that a case would come out for the principal. On the contrary, it's fairly clear cut to me that there's not a ton of case law that would support the principal's actions. The principal would lose this case at least 80% of the time. The fifth circuit does some weird stuff and it wouldn't exactly be out of character for them to interpret the case law as I've described. I personally wouldn't, nor would I think it's reasonable to do so, but it's not outside the realm of possibility. That's really all I'm trying to get at!

Well, all bets are off with the 5th Circuit, certainly, which deserves the "wacky" label way more than the 9th Circuit does. I have some confidence in the Supreme Court on this, though, and the case would get there if it came down to it.

[Kingpoleon]

He who tramples others will himself fall and be crushed.

[ProgressiveCanadian]

The First Amendment was great while it lasted.

[DrScholl]

That would be a violation of the First Amendment, because school districts are publicly funded. With that said, as fanatical as people are about local sports, such a decision would not last long at all.

[publicunofficial]

It'd be awesome if this whole sh**storm gradually led to things like standing for the anthem at every public event and reciting the Pledge of Allegiance in school fall out of style for most of America.