By Michael McCann
Legal Analyst and Senior Sports Legal Reporter
In the wake of the LSU women’s basketball team’s absence at the playing of the national anthem before Monday’s NCAA Elite Eight tournament game against Iowa, Louisiana Gov. Jeff Landry says college athletes’ athletic scholarships should be at risk if they skip the anthem.
Landry’s suggestion, conveyed in a post on X Tuesday, faces a host of legal and practical hurdles. It also arrives at a time when some college athletes seek employment status and union membership to gain a greater voice in how they’re treated.
A spokesperson for LSU told Fox 8 that both the men’s and women’s teams customarily remain in the locker rooms before games as part of their game preparation. Echoing a similar sentiment, Tigers head coach Kim Mulkey–whose Tigers lost to Iowa 94-87–said after the game her team’s absence was part of pregame preparation and not in any way intended to cause disrespect.
College scholarships impose a bevy of requirements on athletes, including that they attend team activities, refrain from misconduct and maintain a minimum GPA. But they do not currently include a penalty for skipping the anthem played before sporting events. Unless their team specifically requires that they appear for the playing of the anthem or unless it is a negotiated term of employment, players would not have that obligation.
A requirement, such as by state statute or regulation, compelling a public university student to attend the anthem as a condition of a scholarship would likely spark a legal challenge. Students enjoy free speech rights under the First Amendment, including speech or conduct that might be considered offensive to some.
In West Virginia State Board of Education v. Barnette (1943), the U.S. Supreme Court held that students and teachers in public schools have the right under the First Amendment to not salute the U.S. flag or say the Pledge of Allegiance. In Tinker v. Des Moines Independent Community School District (1969), the Court clarified that a public school can’t prohibit a particular viewpoint unless the expression of that viewpoint disrupted the educational process. More recently, in Mahanoy Area School District v. B. L (2021), the Court stressed that public schools are “the nurseries of democracy” and must protect “a student’s unpopular expression.”
A private university’s ability to restrict or compel students is enhanced because, unlike a public university, it is not a “state actor” or arm of the government that must adhere to Constitutional requirements. But if a governor signs a bill into law (or if a state agency adopts a requirement) governing the conduct of students at both public and private schools, then a student at a public or private school could challenge it.
Landry’s suggestion coincides with the Louisiana legislature considering a bill that would enhance his authority over higher education governing boards. The expanded power of governors to shape the delivery of public education has become a political controversy in the U.S. Traditionally, university trustees, regents and other school officials have held sway over policies impacting students, faculty and their speech rights. In Florida, Gov. Ron DeSantis has pushed for prohibiting public universities from spending money on diversity, equity and inclusion programs and appointed trustees at public universities who share his viewpoints.
Meanwhile, the National Labor Relations Board and federal courts are weighing whether college athletes are employees of their colleges, and possibly also their conferences and the NCAA. In February, NLRB regional director Laura Sacks concluded Dartmouth College men’s basketball players are employees within the meaning of the National Labor Relations Act in part because of Dartmouth’s control over the players’ time and labor. A college that requires players to attend the national anthem might unwittingly give players a stronger legal argument they’re employees. Players’ concern about school control is also part of their desire to become employees; Landry’s suggestion comes at a particularly bad time for the NCAA and its attempts to hold onto amateurism and discourage employment and unionization drives.
A college athlete could be required to attend the anthem if it was considered part of their employment. Recall that one of the legal hurdles former NFL quarterback Colin Kaepernick faced in kneeling during the anthem was that he was an employee contractually bound by speech and conduct requirements. Those requirements were contained in contracts Kaepernick negotiated and signed, including those through the NFLPA. To the extent a college player’s employment is negotiated with their school, a court would likely honor the arrangement.
Lastly, there are basic recruiting factors to consider when weighing the wisdom of compelling college athlete speech and conduct. If a state imposes requirements on scholarships that offend some recruits, those recruits will become more likely to attend a college in a different state. Louisiana and other states might want to think twice about imposing greater control over elite athletes lest they pick a similar top program elsewhere.
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