Students, teachers, and the Pledge of Allegiance | THE POLITICUS

Students, teachers, and the Pledge of Allegiance

Yet again we have a news story about a student who chose not to participate in the Pledge ceremony, in this case choosing to stay seated, and the reaction (in this case violent) by the teacher in the room. 

So yet again I feel compelled to point out that NO ONE, especially children in a PUBLIC school, can be compelled to participate in any fashion in ceremonies around the Pledge of Allegiance.  Not only can they not be required to recite the Pledge, they also cannot be required to stand up.

This has been true since 1943.  So let me give the background.

First, the Pledge was originally written by Read Admiral George Balch in 1887, and revised by Francis Bellamy, a Baptist minister, for the 1892 Columbian Exposition in Chicago, as a one-time exercise.  The original words were “I pledge allegiance to my flag.”    The words were over time changed to “the flag of United States of America.”  (the words “under God” were not added until 1954, on Flag Day, at the urging of the Knights of Columbus to delineate the US from the atheistic USSR — but those words are irrelevant to what I am writing).

States began to require students to recite the Pledge at the start of the school day, and in 1940 a case reached the Supreme Court because a young Jehovah’s Witness, Billy Gobitas (note spelling), following his religion (which teaches that the Pledge violates the Biblical commandment against graven images) refused to participate and was expelled by the Minersville PA school district.  The Supreme Court ruled 8-1 in an opinion written by Felix Frankfurter, that the school system was within its rights, with the only change being made at that time being dropping the extending of the arm palm up towards the flag on the words “to the flag”  (try it in front of a mirror and think of what that looks like, especially in 1940). That case was Minersville v Gobitis  (note the misspelling of the name)  310 US 586 (1940).

The Pledge was formally adopted by the Congress in 1942.   But in the meantime, we were seeing violence against the Watchtower Bible and Tract Society (official name of the Jehovah’s Witnesses), including church burnings, the most famous of which was in Kennebunk Maine (just miles from Walker’s Point, the Bush family manse, which makes it ironic that the elder Bush made an issue of the Pledge in 1988).  Because we were by now involved in World War II, increasingly editorials in papers were coming out against mandating the Pledge as really not important, and eventually another case involving a Jehovah’s Witness made it to the Supreme Court in 1943.  That case,  West Virginia State Board of Education v Barnette, 319 US 624 (1943), had a 6-3 majority that established the rules under which we are supposed to operate.   The opinion of the Court, written by Robert Jackson (whom Sandra Day O’Connor called perhaps the finest writer of opinions ever to sit on the Court) is considered by many the most cogent opinion ever issued by Scotus.  By then the sole dissenter in Gobitis, Harlan Fisk Stone, was chief Justice.  There were several new Justices on the Court.

Jackson wrote his opinion based not on freedom of religion issues, but on the broader basis of freedom of speech and expression, including the right not to be compelled to speak.

As I have done in the past, I want to quote several portions of that magnificent opinion before making clear what I believe is a failing in preparing teachers and administrators, and perhaps a failing of our schools to truly teach our values.

So, from Jackson’s opinion:

t is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony, or whether it will be acceptable if they simulate assent by words without belief, and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here, the power of compulsion s invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.

And this:

Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. If official power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, but must be largely discretionary with the ordaining authority, whose power to prescribe would no doubt include power to amend. Hence, validity of the asserted power to force an American citizen publicly to profess any statement of belief, or to engage in any ceremony of assent to one, presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question.

Nor does the issue, as we see it, turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual.It is not necessary to inquire whether nonconformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty.

All of that is part of the preface to Jackson’s argument, but it shows you how well written this opinion is.

Now read this extended passage, where I have chosen to put some words in bold to ensure you pay attention:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

Those words set up what comes next, perhaps one of the most memorable set of words ever offered in a Supreme Court opinion, words which in my opinion ought to be learned by every American and certainly by ever school and public official:

If there is any fixed star 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. If there are any circumstances which permit an exception, they do not now occur to us.

Jackson goes on to lay out the implications of this ruling:

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

which also therefore means:

The decision of this Court in Minersville School District v. Gobitis, and the holdings of those few per curiam decisions which preceded and foreshadowed it, are overruled, and the judgment enjoining enforcement of the West Virginia Regulation is


There are concurrences, and also a dissent by Justice Frankfurter.  Two of the Justices decided they had to explain why they had changed their minds from Gobitis.  But the key is by a 6-3 margin the Court ruled that students could NOT be compelled to participate in the Pledge ceremony.

Every public school teacher should be instructed on this.  Heck, it is should be a requirement before receiving certification from the state.  The same should go for public school administrators up to and including Superintendents.   School Board members, state legislators and other state officials should be aware that this ruling is still in effect.

I student taught in a school with children on diplomatic passports.  It could create an international incident to require those children to participate in the Pledge ceremony, and it is totally improper to insist they pledge allegiance to a flag that is not their own.

My current school is on an A-day B-day schedule, where I see my classes every other day for 90 minutes.  In my room is a flag that was a gift from parents of a student in my very first high school government class in 1998-99.  At their request, then Senator Paul Sarbanes obtained for me a flag that was flown over the US Capitol.  I have 1st period planning on A days, and hence no class during the Pledge.  My first period class on B days is Advanced Placement students.  Yesterday was the 4th time we have been together.   On the first day I explained the Barnette decision to them and informed them that I would neither require them to stand nor to pledge, but when the Pledge came on they were if not participating to stop whatever they were doing and be still so as not to disturb the moment for those students who wished to participate.  Yesterday every student in the room stayed seated, silent and still.   Should any administrator or outside visitor complain, I will defend my students on this and point them at Jackson’s opinion.



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