‘Very dangerous, constitutionally speaking’: Law professor reacts to TN senator letter following ETSU kneeling controversy

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JOHNSON CITY, Tenn. (WJHL) – When the East Tennessee State University men’s basketball team took a knee during the national anthem at a game in Chattanooga, it sparked strong reaction both for and against the gesture.

The backlash led to a letter signed by 27 Republican state senators earlier this week. The letter encouraged state university leaders to adopt policies in their athletic departments that ‘prohibit any such actions moving forward.’

ETSU officials provided the following statement on Tuesday afternoon in reaction to the letter:

“ETSU is in receipt of the letter from members of the Tennessee General Assembly.  We recognize the importance of this issue and will undertake a review of our existing athletic policies,” the statement said.

For Stewart Harris, a constitutional law professor at Lincoln Memorial University, the letter raises concerns.

“This is a very, very serious matter. And very dangerous, constitutionally speaking,” said Harris.

Harris believes the letter puts the state in hot water constitutionally.

“It’s perfectly appropriate for a state legislator to express concern to a state university president about any matter having to do with that university. The danger here is that this letter may be perceived as placing pressure on university administrators, because of course, the legislature holds the purse strings,” he said.

Harris said further, “If I had been advising them, if I’d been their lawyer, I would have strongly recommended that they not sign it.”

(Photo: WJHL)

As state universities are government institutions – they are subject to the First Amendment.

“But to turn around and try to say, ‘well, these are state universities, and therefore students who are wearing a basketball uniform are somehow representing the views of the government, or speaking on behalf of the government,’ that’s just not true,” Harris said. “Anybody who is following this can tell that these are individuals who are expressing their individual viewpoints.”

Harris said universities are then free to disavow the views of these students.

“But that’s as far as the university can go,” he said.

The First Amendment would be violated if a university tried to penalize students for expressing their individual opinions, according to Harris.

“It could result in court action, and it could result in very large judgments against the universities, and perhaps against the legislature as well,” he said.

Harris said other courts have considered the issue, and have held students have the right to peaceful protest, including kneeling at basketball games.

“It’s very clearly established. And if a right is clearly established, then the university or any state governmental actor could expose the government to very large fines, damages, under Section 1983,” he said.

Section 1983 gives people the legal ability to sue for monetary damages when the state violates a clearly-established constitutional right.

Harris said the students have the right to peacefully protest, even though the action is hurtful for many.

“I’m one of those old-fashioned guys who gets misty-eyed when he hears the national anthem. And I stand up, and I put my hand over my heart, and I sing, it is a very important thing to me,” Harris said. “But the thing that makes it important, is that it’s completely voluntary. If you want to live in a country where you have to stand during the national anthem, where you have to sing along, move to North Korea.”

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