Campus anthem battle: It’s cheerleaders vs. a sheriff and a powerful lawmaker

Eric Adelson
Columnist
Five Kennesaw State University cheerleaders take a knee during the national anthem prior to a college football game on Sept. 30. (Atlanta Journal-Constitution via AP)

The pregame protests in the NFL drawing attention to racial inequality have become increasingly routine. Those at the lower levels of football, however, are anything but.

The latest clash over the national anthem and American flag vs. the Constitution is going on at Kennesaw State University in Georgia, and it involves cheerleaders, an elected official and a Cobb County sheriff.

And now a national civil rights group is chiming in.

On Sept. 30, five Kennesaw State cheerleaders kneeled during the national anthem prior to a football game against North Greenville University. They were subsequently restricted to a stadium tunnel during the playing of the anthem, and an explanation was given by the school that the new procedure was unrelated to the protest and already in the works.

Some investigative work by Georgia news outlets, including 11Alive, found text messages between state rep. Earl Ehrhart and sheriff Neil Warren indicating they were “furious” about the protests. Ehrhart reportedly criticized KSU president Sam Olens for “coddling” the cheerleaders and Warren responded, “Let me know what I can do to help you stop this BS on taxpayer-funded college campuses.”

Further exchanges reported by 11Alive suggest the elected official and the law enforcement leader had indeed pressured the school president into making a decision involving free speech.

“I just got off the telephone with [Olens] again, reference the unpatriotic cheerleaders kneeling during the national anthem,” Warren wrote. “He assured me that the cheerleaders will not be on field from now on. Thanks for always standing up to these liberal[s] that hate the USA.”

“Yes, we spoke last night,” Ehrhart replied. “[Olens] had to be dragged there, but with you and I pushing, he had no choice. Thanks for your patriotism, my friend.”

Is that “patriotism”? Or unconstitutional pressure?

Ehrhart is no back-bench lawmaker. He chairs the state’s house appropriations subcommittee on higher education, meaning he has a direct effect on Kennesaw’s funding. The school is the third-largest university in the state. So there is political context here. And “he had no choice” is a troubling statement to say the least.

“My private comments with Sheriff Warren regarding the cheerleader protest at Kennesaw State expressed my personal feelings,” Ehrhart said in a statement to Yahoo Sports on Wednesday. “I stand by them. I urge President Olens to stand firm against any student publicly disrespecting our flag at a football game or any college event. I say that as a private citizen.”

Where do his remarks as a private citizen end and pressure from a powerful political figure begin? Would this constitute a “chilling effect,” which is something the Supreme Court has warned against on multiple occasions?

“It would potentially in some situations scare people,” said Mark Kende, director of the constitutional law center at Drake University.

The sheriff’s involvement is potentially even more concerning.

“Why would a county sheriff be focused on this? To police the cheerleaders?” Kende asked. “If they intervene for a political reason, that just contributes to making this look worse. It makes it look like a law enforcement official is dictating policy. That doesn’t make any sense under any scenario.”

A spokesman for Warren, reached by phone on Tuesday, said, “We will not be commenting for any further news stories.”

Olens, the school president, has apologized for the way he handled the situation. It’s unclear if the cheerleaders will be on the field during the anthem at future home games. A spokeswoman for Kennesaw State released this statement on Tuesday: “Kennesaw State University believes it is important to honor the national anthem. It is equally as important to respect the rights of individuals as protected under the first amendment.”

The situation escalated on Tuesday, as the Lawyers’ Committee for Civil Rights Under Law wrote an open letter to the Board of Regents of the University System of Georgia to “express grave concerns regarding punitive actions that appear to violate the constitutional rights of cheerleaders at Kennesaw State University.”

“Denying the cheerleading squad an opportunity to be present during the national anthem is not an act of patriotism; it’s an act of retaliation,” the letter reads in part. “The public reports indicate that KSU and other public officials violated these students’ First Amendment rights by retaliating against their peaceful protests based on the students’ viewpoint.”

The Board of Regents has begun a review of the situation.

Ehrhart wrote an op-ed in the Marietta Daily Journal defending his stance, in which he said, “A university student cannot demand a taxpayer supported platform like a football field for their [sic] political speech.”

He continued, calling the football stadium a “restricted venue” and adding: “If those who prefer to stand on this as a free speech issue want to completely allow all statements from all students, even those which offend them, onto the field, the stadium will cease having the capacity for games and become a free speech zone for all. You cannot just restrict the stadium to left wing hate speech and gestures only.”

Less than a month prior to the first KSU cheerleader protest, Ehrhart weighed in on his Facebook page about another free speech issue, in which a school student was told he was not allowed to wear a pro-Donald Trump shirt in class.

“When a public school teacher specifically selects conservative expression as unworthy of free speech protection, we should all be shocked,” he wrote. “When she reprimands and takes action against a student for this expression, shock is not enough – we should be outraged.”

Kennesaw State University students and faculty along with Kenneth Sturkey, who dresses as the university’s mascot Scrappy the Owl, rally in support of five cheerleaders who knelt during the national anthem. Republican state Rep. Earl Ehrhart, who chairs a Georgia House subcommittee in charge of funding the state’s public universities, objected to the mascot’s appearance at the rally. (Atlanta Journal-Constitution via AP)

In an effort to seek comment as well as clarification about the difference between “conservative expression” and the expression of concern about racial inequality, Yahoo Sports reached out to Ehrhart’s office and received the following statement:

“I take very seriously patriotism and respect for our flag and for those who fight and died for our freedom. This should not be a conservative or liberal position. This should be an American position. I understand the constitutional right to protest the flag and our national anthem. But that doesn’t make it right, especially if protesters represent a state institution on taxpayer funded restricted venues.”

Ehrhart may have a point here in that cheerleaders can be viewed as direct representatives promoting the university’s message in a way that football players are not. “In that sense you have two slightly different categories,” Kende suggests. “Cheerleaders might be restrained in what they’re allowed to do.”

However that argument weakens if the cheerleaders at Kennesaw State were not given guidelines when they joined the team. If they were not instructed on rules, and if the decision to move them was not made prior to their protest, it certainly looks as if they were removed from the field at least in part because of the feedback from two of the more powerful people in the area.

Questions to the school about these topics were not immediately answered.

The team’s next home game is scheduled for Nov. 11 – Veterans Day.

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