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Legal Issues in the Students' Free Speech Rights Complaint
Do Students Have to Say the Pledge of Allegiance?
"If there is any fixed start 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." West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
The law regarding this issue is quite clear. The right to refrain from saluting the flag is one of the most stringently upheld constitutional principles relating to students. More than fifty years ago, in a major U.S. Supreme Court case, West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Court held that a compulsory flag salute violated the right of all citizens to free expression.
The West Virginia Board of Education had adopted a resolution ordering that the salute [and pledge of allegiance] to the flag become "a regular part of the program of activities in the public schools," and that all teachers and pupils " shall be required to participate in the salute honoring the Nation represented by the Flag. The resolution stated that refusal to salute the flag would be regarded as an Act of insubordination and "shall be dealt with accordingly." Citizens of the United States and West Virginia, brought suit in the United States District Court to restrain enforcement of these laws and regulations against Jehovah's Witnesses, whose religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: "Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them."
In finding the compulsory flag saluting unconstitutional, the Court defined the issue as follows, "National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement."
The West Virginia opinion overruled the earlier Supreme Court decision in Minersville School District v. Gobitis, 309 U.S. 586, 605 S.Ct. 1010, 84 L.ED. 1375, 127 A.L.R. 1493. In Gobitis, a brother and sister, aged twelve and nine, were expelled from the public schools of Minersville, Pennsylvania for not participating in a daily flag saluting ritual required of both teachers and pupils. The Gobitis Court reasoned that this is a field "where courts possess no marked and certainly no controlling competence," that it the authority of legislatures as well as the courts to guard cherished liberties and that it is constitutionally appropriate to "fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena," since all the "effective means of inducing political changes are left free."
Conversely, the Court in Barnett, found that, "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
At end of the opinion in West Virginia, Justice Jackson stated that "If there is any fixed start 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."
Subsequent court decisions support the right of students to refrain from standing during the pledge of allegiance, including a U.S. Court of Appeals decision that is legally binding on government officials in Florida. See, e.g.: Banks of Public Instruction, 450 F.2d. 1103 (5th Cir. 1971)(affirming Southern District of Florida decision that disciplining student for failing to stand for the pledge of allegiance violates the First Amendment); Lipp v. Morris, 579 F.2d 834 (3rd Cir. 1978)(declaring a new jersey statute requiring students "to show full respect to the flag while the pledge is being given merely by standing at attention" unconstitutional); Rabideau v. Beekmantown Central School District, 89 F.Supp.2d 263 (N.D. NY 2000) ("It is well established that a school may not require its students to stand for or recite the pledge of Allegiance or punish any student for his/her failure to do so.")
Florida does have a state statute pertaining to patriotic programs in education which allows students to refrain from such activity in school, but only upon written request of his or her parent or guardian.
Each District school board is authorized to adopt rules to require, in all of the schools of the district, programs of a patriotic nature to encourage greater respect for the government of the United States and its national anthem and flag, subject always to other existing pertinent laws of the United States or of the state; provided, that when the national anthem is played, students and all civilians shall stand at attention . . . and provided, further, that the pledge of allegiance to the flag, "I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all," shall be rendered by students standing with the right h and over the heart. The pledge of allegiance, as stated herein, shall be recited at the beginning of the day in each elementary and secondary public school in the state. Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge. Upon written request by his or parent or guardian, the student must be excused from reciting the pledge. Fla. Stat. Ann. 233.0655 (WEST 2000).
However, because of the Supremacy Clause, any state statute that places restrictions upon a student's right to remain seated during the pledge of allegiance is clearly unconstitutional.
This is not the first time that the ACLU has become involved in this issue. In 1998 the ACLU filed a federal lawsuit against members of a school district near San Diego, California. School officials had mandated that the student either stand silently during the pledge or leave the classroom until its completion. A settlement agreement was entered in this case and the student was allowed to sit quietly during the pledge without any punishment or consequences.
