Taking a Knee 'Will Not Be Tolerated'

East Carolina U bars band members from protest during national anthem. Stance differs from that of other public colleges and universities.

October 5, 2016

Since athletes and others have been taking a knee during the national anthem, the leaders of public colleges and universities have offered a variety of views on whether the protests are wise. Even so, they have defended the protests as a form of speech protected by the First Amendment and traditions of free expression in higher education.

But East Carolina University is taking a different approach. In the wake of a controversy over a move by some band members to take a knee while playing the national anthem at a football game, the university has said that such demonstrations will no longer be tolerated.

"College is about learning, and it is our expectation that the members of the Marching Pirates will learn from this experience and fulfill their responsibilities. While we affirm the right of all our students to express their opinions, protests of this nature by the Marching Pirates will not be tolerated moving forward," said a letter released by the university. It was signed by William Staub, director of athletic bands; Christopher Ulffers, director of the School of Music; and Christopher Buddo, dean of the College of Fine Arts and Communication.

The letter also said that the officials "regret" the actions of the band members, which they said "felt hurtful to many in our Pirate family and disrespectful to our country."

The letter appears to differ from the message of Chancellor Cecil Staton immediately after the game. In a statement he issued then, Staton said that the university "respects the rights of our students, staff and faculty to express their personal views." (University officials did not respond to email messages asking about the apparent shift in message.)

The language the chancellor used is typical of what other university leaders have argued amid public (and political) criticism of athletes and others who have taken a knee to protest police violence against black people.

For example, many Nebraska politicians criticized football players at the University of Nebraska at Lincoln for taking a knee. Hank Bounds, president of the university, responded by saying that the players had the right to express themselves and wouldn't be punished. "I have served in the military. I understand love of country and love of the flag and I know that freedom is not free. I recognize that some are upset by what they saw on Saturday night. But let me be clear. The University of Nebraska will not restrict the First Amendment rights of any student or employee," Bounds said.

The latest letter from East Carolina seeks to frame the issue in a different way. "We have met with the band and the members have collectively reaffirmed their commitment to the unique privilege and responsibility that comes with wearing the uniform of the Marching Pirates," the letter says.

Robert L. Shibley, executive director of the Foundation for Individual Rights in Education, which opposes limits on the speech of students and faculty members, said via email that East Carolina may have found a way to bar anthem protests without violating the First Amendment.

"The band director at either a public or a private university has the right to tell band members what they may or may not do during performances and to enforce this through internal discipline or by separating a member from the band," Shibley said. "However, as a state university, ECU cannot use the student disciplinary process to punish band members for protected expression."

The same principles would apply to athletes, he said. "Yes, a public university can likely tell football players that they are not allowed to take a knee during the anthem, as the athletes (and band) do, to some extent, represent the university," he said. "Though again, the discipline would be limited to internal team discipline -- not the student conduct code. Of course, none of this means it's a good idea to do so."

Asked if it was a good idea to limit these protests, Shibley suggested that officials consider a 1943 Supreme Court ruling, West Virginia State Board of Education v. Barnette, which found that states could not require schoolchildren to salute the U.S. flag and pledge allegiance to it. The decision said, "If there is any fixed star in our constitutional constellation, 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. If there are any circumstances which permit an exception, they do not now occur to us."

Anger in East Carolina

Many of the instances in which athletes and others have taken a knee have resulted in criticism in the days that followed -- especially on social media. But the East Carolina protest was noticed immediately. When the band returned to the field at halftime, it was met with boos.

And a radio station announced Tuesday that it would not broadcast this weekend's East Carolina football game because of the band's "shameful" disrespect of the national anthem.

Band members have defended their protest and said that they are joining a movement to create discussion about race in the United States, not showing disrespect.


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