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
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
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