The Barberton City School District is doing the prudent thing by allowing some members of the Magics boys basketball team to engage in silent protest by kneeling or sitting during the pregame playing of the national anthem.
The district is also doing the right thing.
Although it has yet to be confirmed, the protests are believed to be an effort to draw attention to police brutality against minority members of the community and seem to be inspired by the near-identical 2016 protests of former San Francisco 49ers quarterback Colin Kaepernick against systematic oppression and racial injustice.
They also follow directly in the tradition of nonviolent activism as practiced by slain civil rights icon Dr. Martin Luther King Jr., whose birth our nation will commemorate on Monday.
Certainly, the Barberton students have a legal right to protest guaranteed by the U.S. Constitution. The Supreme Court made that clear with its 1943 decision in West Virginia State Board of Education v. Barnette, in which it ruled that public schools — unlike private entities such as the NFL, which are legally entitled to enforce their own work requirements — can not compel students to participate in rituals based upon the premise of national unity.
“If there is any fixed star in our constitutional constellation,” Justice Robert Jackson wrote in a 6-3 majority opinion, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
The school district acknowledges that disciplining the students or attempting to prevent them from protesting would break the law and, undoubtedly, would be challenged in court — where the district surely would lose.
“The Barberton City School District supports every student’s right to free speech, as protected by the United States Constitution and supported by Ohio Revised Code (state law),” the school district said in a statement. “Ohio Revised Code 3313.602 states that a school district cannot compel an act of patriotism on the part of a student.”
The district instead chose the wiser course, allowing the protest, rather than waste taxpayer dollars on legal fees.
But we applaud the district for not simply stopping there, saying it could do no more.
Instead, in the face of some public opposition, the district has defended the students for exercising their rights and has used the controversy as a real-life teaching tool.
“While many people may not share this student’s point of view, as a public school district we are proud of all of our students who are learning important lessons about life that public schools are uniquely suited to teach — that people can hold different beliefs and can still coexist, get along, and even work together toward common goals,” the district said in its statement.
Although we understand the raw emotions evoked when patriotism, the military or the U.S. flag are involved, that’s all the more reason for such speech to be fiercely protected. As the Founding Fathers knew, popular speech does not require protection.
Justice Jackson said as much in his 1943 decision: ”[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”
We are being tested again.
The Barberton City School District gives us reason to believe our answer will be the right one.