West York school board members disagreed during a meeting on Tuesday, Oct. 10, over considering changes to the student code of conduct after some high school football players reportedly considered participating in “take a knee” protests like those occurring around the country.
But the district's acting superintendent said there would be "no consequences" for student athletes kneeling during the national anthem.
The discussion started after board vice president Todd Gettys referenced a Friday night last month where “some students ... contemplated some actions and expressions of their rights” at a game.
He said he was “glad students made a respectful decision to not go through with the actions,” but he brought up the idea of adding language to the student code of conduct to prohibit similar actions.
“I think that it’s time that we review ... what is in there and that we make sure our students (know) what we think is acceptable and maybe unacceptable,” Gettys said
“I’m not talking about (just) sports, I’m talking about all extracurricular activities,” Gettys said during his initial remarks.
Fellow board member and York County attorney George Margetas pushed back, adding that students are not required to do the same things as contracted athletes might under a strict agreement.
"As far as kneeling is concerned, I might not agree with it, but everybody has a right to do what they want to do," he said.
“But they do represent the school,” responded board member George Brandt, "and a bad representation needs to be rewarded (with consequences)."
Acting Superintendent Patricia Sanker said she does not think it is a “function of the board” to review the student code of conduct, but rather it is a process overseen by administrators and the athletic director.
“We don’t want it to be top-down. We want it to come from the schools and brought to you,” she said.
Gettys disagreed, saying the actions of a few could reflect negatively on the district, and such an event would be a board concern.
“I will tell you this," he said, "if they (the students) are left unchecked, I am then resorted to use my influence in other directions and that means I start un-funding things I don’t like.
“That’s not a threat, but that’s the only thing we have,” he added.
West York Assistant Superintendent Paula Rudy said, while she agrees the district should continuously review discipline in the code of conduct, the insertion of specific language could blow back on the district.
“If we get too much minutia into the code of conduct, we run the risk of pigeonholing ourselves into a corner where ‘the code of conduct says ...,’ and student-centered (discipline) goes by the wayside,” she said.
Board member Robert Crouse said he received emails about the possibility of a demonstration at a football game last month, and it left him “uncertain as to what (was) going to unfold” at the game.
Although the incident did not come to pass, Crouse seemed to sympathize with Gettys’ point of view.
“I think what Dr. Gettys is trying to get to is, let's button this down so that if it does come up, there’s what we have to tend with,” he said.
“As it stands now, I think we’re in a real uncertain area,” Crouse said.
Legality: After more back and forth, board solicitor Jeffrey Litts spoke directly on the issue.
“Can I just ask the question directly? People are concerned about taking the knee during the national anthem,” Litts said, with a few head nods across the board.
“First of all, there’s a constitutional issue,” he said.
Margetas asked Litts outright whether students have the right to kneel on one knee.
“They can do it,” Litts answered.
“Thank you, Jeff,” Margetas responded.
Litts said past cases at the U.S. Supreme Court and in the U.S. Appeals Court for the Third Circuit, which covers parts of Delaware, New Jersey and Pennsylvania, have ruled students are “absolutely protected” if they choose to sit during the Pledge of Allegiance to the American flag.
Litts said he has dealt with the same situation at other school districts and advised all of them that the expression is protected by the Constitution.
“So long as students are silent and nondisruptive, if they want to take a knee during the national anthem, they have a First Amendment right to do it,” he said.
"So the beliefs they hold (that aren't) near and dear to you and me is allowed in our forum and in our uniform?" Crouse asked
"Yes," Litts responded. "You are a public school district and an arm of the government."
He also added a grim warning about what could come if a discipline policy were acted upon.
“If a coach or school district were to take disciplinary action against a student, you are opening yourself to a civil rights lawsuit and (writing) a big fat check (for) the American Civil Liberties Union’s attorneys fees,” Litts remarked.
Gettys: "We want to make sure that students' actions — student choices — reflect the respect and the responsibility of what is deserving in the community," Gettys said after the meeting.
"It'd be unfortunate to have one or two incidents taint the positive things we have going on," he added. "I understand students have a right of expression, but I think students have to understand that ... exercising your rights does have consequences."
He added many extracurricular programs are funded by outside dollars that might run dry if the district starts "offending" donors, which in turn hurts everyone, including those not participating in protests.
One board member, Douglas Hoover, cautioned against "reactionary" changes by the board from national events.
While recent kneeling demonstrations at sporting events nationwide started the idea of a change to the student code of conduct, Gettys said his overall issue is regarding rule articulation.
"We can't hold students to a standard that's not articulated," he said.
Regarding kneeling, Gettys said he personally believes "it's not the place, during the national anthem, to express your views of dissatisfaction" in such a manner.
"I think there are other outlets that better suit that," he said.
"You're making it about you (rather) than the team, and there's more negative than a positive."
ACLU response: Mary Catherine Roper, deputy legal director of the American Civil Liberties Union of Pennsylvania, said, “It sounds like the solicitor knows what he’s talking about” when it comes to student expression.
Roper said the ACLU won a case just last week that dealt with student speech in Schuylkill County.
“The school said since it was extracurriculars they could do whatever they want (in terms of discipline),” she said, but a federal court ordered the school to reinstate a student to the cheerleading team until a judge issues a final ruling on the case, adding that the student was likely to win the case.
Roper also cited a 74-year-old ruling by the Supreme Court — West Virginia v. Barnette — that ruled students have a right to refuse to participate in the Pledge of Allegiance under the First Amendment.
“Remaining passive during a flag salute ritual (poses no) clear and present danger that would justify an effort even to muffle expression,” the 1943 Supreme Court opinion states.
“In short,” Roper said, “we would absolutely take the case (against West York), and I don't think there’s any doubt that we would win."
No change or punishment: Reached by phone Thursday afternoon, Sanker said administrators would not add any language to the student code of conduct to prohibit or punish students for kneeling during the national anthem.
"We were advised by the solicitor that it would be against the First Amendment," she said. "So we will not be doing that."
Sanker also confirmed student athletes' consideration to kneel came after President Donald Trump tweeted in late September against the NFL and players who knelt during the national anthem at the start of games.
"All the commentators mentioned it on TV when you were watching the games," Sanker said. "So naturally, it influences our young athletes."
She added she was proud that students stood "arm and arm" during the national anthem before a Sept. 29 game against Kennard-Dale.
Football coach Jeremy Jones spoke to the student athletes before the game and told them, "We act as a team and decide as a team," Sanker recalls Jones telling her.
The Bulldogs ended up defeating the Rams, 34-28.
Jones did not convince students one way or the other on what to do during the national anthem, according to Sanker.
Asked what will happen if the action occurs at a future game, Sanker answered unequivocally.
"There will be no consequence for taking a knee," she said.
— Reach reporter Junior Gonzalez on Twitter @EducationYD or by email at email@example.com.