Ames High School Band performs at half-time.
Ames High School Band performs at half-time.

My article about several members of the Ames High School Marching Band walking off the field for the National Anthem in protest last Friday received a lot of feedback on Facebook (it has a public setting so I think you can view the post whether or not you have Facebook).

I wanted to address three things in my earlier article that I either didn’t address or didn’t make clear.

1. At issue for me was the legality of a school disciplining students in this instance, not the appropriateness of the protest.

Let me be clear here. I disagree with the students who protested. I think their reasoning for protesting was foggy at best. I believe protests during the National Anthem are in poor taste. I think there are better times to protest. Now, some have taken protests like these as a personal offense, and I don’t quite understand that (and I served in the Army), but hey, be offended. To each their own.

The First Amendment protects speech that offends us.

I was responding only to the calls for the kids to be kicked out of the band, or have some other type of school discipline. Some believe the Ames School District should fire the principal.

I already explained why I disagree with that so I don’t want to address that again here.

One commenter said that if I defended these students’ actions, then I also have to defend the Westboro Baptist Church funeral protests. This comment is a strawman argument.

Both actions are inappropriate (naturally in varying degrees), and I wasn’t defending the behavior. I was addressing whether or not the school had the constitutional or legal authority to discipline students in this instance. Just as the government doesn’t have the right to arrest or fine Westboro Baptist Church members who protest funerals, etc. unless they are in violation of trespassing or some other law.

2. I am not promoting anarchy in the school. Students don’t have carte blanche permission to do whatever they want or say whatever they want.

I think the Ames Tribune article that followed-up with school officials gives us some insight.

According to Ames High School Principal Spence Evans, 13 members of the approximately 300-member ensemble chose to exit the football field and stand in the band section of the stadium prior to the performance of “The Star-Spangled Banner,” rather than play on the field with the rest of the band.

Originally, students intended to take a knee, as has been done by multiple professional athletes after protests against racial injustices and police brutality were first started by former San Francisco 49ers quarterback Colin Kaepernick. However, Evans asked they stay in the band section of the stadium if they chose not to play their instruments.

“It was explained to them on Friday during band that they were part of a performance, and part of Ames High School, and that if they chose not to be part of (the) national anthem, they’d have to remove themselves from the field and stand in the stands,” Evans said. “Obviously, they have First Amendment rights, but we also have a performance to put on, too.”

The students who chose not to participate in the national anthem left the field, walked into the stands and linked arms with members of the student body in a “show of unity,” said Superintendent Tim Taylor.

Associate Superintendent Mandy Ross said district officials reached out to legal counsel prior to Friday night to ensure everything was within school and student rights.

First, the students did what the school administration told them to do. They wanted to kneel, but the administration said to do something else. This response was appropriate. The students left the field before the performance. They did not disrupt the performance.

Had the students ignored what the Principal said and kneeled, or if they left during the performance interrupting the band, then the school could make a case that the students were disruptive and discipline would be appropriate. Supreme Court case law backs that up.

Now, I don’t think the school is mandated to give the students a platform every week. If they plan on protesting during the National Anthem every home game; I do not believe the school is obligated to let them onto the field during the pre-game performance. Allowing them to boycott the National Anthem respects their First Amendment rights while keeping the attention on the band’s performance (and the National Anthem). That’s the school’s decision. Whether or not they go onto the field or not the protest, I believe, falls under Tinker’s parameters and either way they are on solid legal footing.

Schools are not required to protect every instance of student protest.

Bethel School District vs. Fraser shows, for example, a student can’t cuss out a teacher or administrator. Lewd and vulgar speech on school grounds and during school activities are not appropriate.

In Hazelwood School District vs. Kulmeier, the Supreme Court ruled that “educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”

So that’s why if the students disrupted the band while performing they could (and should) be disciplined. Another example would be if a student actor during a school play goes off script they can (and should) be disciplined as well.

I don’t think students have the right to get up disrupt class to protest (I recently criticized Des Moines Public Schools’ inconsistency applying Tinker).

Kids don’t shed their First Amendment rights at the schoolhouse door, but that doesn’t mean we have anarchy in the schools.

3. An exercise of First Amendment rights does not mean you’re free from natural consequences.

These students are now subject to public disapproval. They were booed (and that is the audience members exercising their free speech). While the school may not discipline these students, it doesn’t mean they may not face the consequences at home. I know if they were my kids they would.

If participation in that performance is part of their grade, then they should have to accept whatever that does to their grade. (I will say that has to be made clear ahead of time, it should not be punitive. It should also be proportional, for example, if band members do not participate in the pre-game performance, but do perform during half-time.)

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