Three Minnesota 8th Graders Suspended for Refusing to Stand During Pledge of Allegiance

Last week three Minnesota 8th Graders were given in-school suspension for refusing to stand during the morning Pledge of Allegiance. The Dilworth Junior High School handbook mandates that all students stand for the Pledge, though students are not required to actually recite the the words of allegiance to the flag. The Minnesota ACLU has challenged the school policy, arguing that public school students cannot be punished for refusing to recite the pledge. The district's Community Education Director has expressed his support for the punishment as a "veteran and a United States of America citizen." The School principal allegedly told students it was disrespectful to sit during the pledge with troops fighting abroad. However, legal counsel for the school admits that the school handbook may need to be amended in order to protect student constitutional rights.

The suspensions raise a variety of First Amendment questions. The Supreme Court has heard numerous cases relating to free speech in public schools, most recently the Morse case ("Bong hits for Jesus") out of Alaska. While First Amendment protections for students within school grounds are not as broad as those rights enjoyed by adults in the outside world, students do not shed their constitutional rights at the school house gates. While most are aware that the Court has outlawed school prayer in public schools under the establishment clause, less may remember that the Court has also outlawed mandated participation in the the recitation of the pledge of allegiance. In striking down a school policy mandating participation in the Pledge and salute, the Court in West Virginia Board of Education v Barnette held: "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." Justice Jackson, writing for the majority, held that forcing students to recite the pledge and salute the flag ran counter to the First Amendment. Clearly, the freedom to speak includes the freedom to remain silent.

Had the students been suspended for their refusal to recite the pledge, Barnette obviously would have been controlling and the school policy would have to be overturned. But these students were not suspended for their refusal to recite the pledge. They were suspended for their refusal to stand during the pledge, a pledge they were not required to recite. The question is whether sitting down during the pledge of allegiance, while others stand, constitutes expressive conduct protected by the First Amendment. The Court has defined conduct as "expressive" where there is an intent to convey a particular message and the message would be understood by those who saw it (See Spence v Washington). The circumstances surrounding the facts of this case would seem to favor a conclusion that the students conduct was expressive in nature. The pledge is read every morning, during which time students are asked to stand, ostensibly in support of the the flag and the messages contained within the pledge. Any student who refuses to stand will be conspicuous, with other students and teachers concluding that the student does not support the messages of the pledge or is making some larger comment on American policy (or perhaps just forgot to stand). However, none of the suspended students have voiced the position that there refusal to stand was a form of protest or in any way an expression of their views. One student specifically said he just forgot to stand up. If the students did not intend their conduct to be "expressive" is this just simply a case of a student refusing to stand at the order of a teacher? Teachers legitimately order students to stand for all sorts of reasons. While standing during the pledge reasonably conveys a message of support for the flag, does a refusal to stand during the recitation represent a clear message of protest constituting expressive conduct protected by the First Amendment when the individual does not make clear their reason for remaining seated? Or does the mere act of sitting during the pledge, when the school policy is to stand, convey a clear message.

The inconsistent reactions to the suspensions exemplify the divide in America that currently exists at the intersection of patriotism and free speech and expression. One parent of a suspended student agreed "100%" with the schools decision. Another parent found the suspensions to be "ridiculous". What does it mean to be patriotic? With soldiers fighting in controversial conflicts abroad, the country is still struggling to determine whether patriotism consists of unflinching support for American military policy, unflinching criticism of American military policy , or perhaps something in between.

Star Tribune: 3 Suspended for Not Standing for Pledge of Allegiance
AP: 2 Students in Western Minnesota Suspended over Pledge of Allegiance

Posted by Todd Garvey

Levels of Scrutiny and the 14th Amendment: Carolene Products Footnote 4 just a footnote?

Any law student worth his or her salt knows that SCOTUS applies various levels of scrutiny depending on the nature of the alleged constitutional violation resulting from the challenged law. These “levels of scrutiny” are repeatedly and mercilessly hammered into the heads of con law students across the country. One can easily picture a professor standing at the front of the room recite a due process hypothetical…stop…look up as students look down…and then the inevitable delivery: “Now, what is the right in question, and what level of scrutiny will the court apply?”

To simplify, in a 14^th amendment substantive due process challenge, if a violated right is classified as “fundamental,” the court will apply strict scrutiny, meaning the law must be narrowly tailored to a compelling interest. Non-fundamental due process challenges receive rational basis review, meaning the law must be rationally related to a legitimate interest. In the equal protection realm of the 14^th amendment, laws that discriminate against protected classes receive strict scrutiny. Discrimination of other select groups, i.e. gender based discrimination, receives intermediate scrutiny, meaning the law must be substantially related to an important interest. Finally, where the law is facially neutral, a disparate impact on a certain class does not violate the constitution unless there is evidence of purposeful discrimination. A seemingly simple analytical paradigm to be applied to constitutional challenges.

Crawford v. Marion County, the recent Indiana photo ID voter case, could have fit cleanly into the existing levels of scrutiny paradigm. The main challenge to the Indiana statute was that by requiring voters to present a valid government photo ID, the state law would create a disparate discriminatory impact on the poor and the elderly who could not, for physical or economic reasons, get to the DMV to obtain a valid photo ID or get to the circuit court clerk’s office to cast their provisional ballot. Had this statute constituted a substantial facial discrimination against certain classes of voters, the court would have most likely applied strict scrutiny and the law would have been stuck down under the fundamental rights strain of Equal Protection (see i.e. Harper). But, this law was facially neutral with only the potential for disparate impact. Under Washington v Davis, such laws will only be struck down where there is evidence of purposeful discrimination in the legislative history behind the statute. Many opponents of the bill argue that the fact that every Republican voted for the measure while every democrat voted against it is sufficient to show an intent by Indiana Republicans to discriminate against potential Democratic voters. A mere partisan divide certainly does not constitute sufficient evidence to establish purposeful discrimination. Most floor votes are down party lines in these fractious times. Additionally, the state has presented overriding valid and legitimate, non discriminatory reasons, for passing the photo ID law. The law could have been easily, and in my opinion, more clearly, upheld under this analysis. (Justice Scalia, joined by Justices Thomas and Alito, came much closer to this line of reasoning than the main opinion.)

SCOTUS apparently did not agree. In Crawford, the court took what could have been a simple application of the above outlined standards, and turned it into an amorphous, indeterminate, and ambiguous balancing of interests. Certainly, the levels of scrutiny do not provide for clear cut standards, but the paradigm at least provided a hierarchy of review for interests of varying values. The levels of scrutiny force the court to clearly identify the gravity of the government interest and the closeness of its relation that would be required to sustain the law. Instead, the court used the test they have applied in previous voting cases, stating that it would uphold the law where it was “justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” What does this mean? Is this an application of rational basis review? Is a relevant and legitimate interest different from a legitimate interest? Is there no “fit” requirement in this review? What does the court mean by sufficiently weighty? With what type of eye is the court deciding what constitutes a sufficiently weighty justification? Is there a presumption of validity in this test like in rational basis review or is the court engaging in a searching and skeptical analysis as in strict scrutiny? There was no discussion of whether the court would apply strict scrutiny or rational review, though the court did borrow the “legitimate interest” language form rational basis review. Instead, the court simply considered the state’s interests, that of deterring voter fraud and maintaining public confidence in the state election system, and, without classifying the interest or placing the interest within the levels of scrutiny hierarchy, came to an arbitrary determination that the state interest was “sufficiently weighty.” Still, the Stevens opinion gives us more guidance than the standard of review used by the dissenters. Justice Souter writes, “we have avoided pre-set levels of scrutiny in favor of a sliding-scale balancing analysis: the scrutiny varies with the effect of the regulation at issue.” Such language is a law student’s nightmare.

The standard of review paradigm is by no means perfect, but it constitutes an analytical standard and engenders more predictability and clarity than the ad hoc balancing of “weighty interests” that the Court has used in voting rights cases. The process used to get the result is often much more important than the final outcome, especially when Courts apply the reasoning, more than the disposition, in future cases. The same question that is asked of con law students across the country should be asked of Justice Stevens and the majority opinion: “Now, what is the right in question, and what level of scrutiny has the court applied?”

The full text of Crawford v Marion County Election Board is available here.

Posted by Todd Garvey