Students Protesting During the Pledge of Allegiance

Earlier this year, an 11-year-old student testified that her teacher confronted her after she chose to kneel during the Pledge of Allegiance. As children return to school, and as athletes continue to kneel for the National Anthem, it seems like a good time to look at the question: What rights do students have with regards to the Pledge of Allegiance?

First of all, let me point out that what follows only applies to public and charter schools. Private schools, as well as the NFL, are not government agencies. They can make and enforce whatever rules they want.

If football players want to take a knee during the National Anthem, it’s between them, their employers, and their fans. If public school students want to take a knee during the Pledge of Allegiance or otherwise express a political opinion, they have considerably more protections.

So this is important information for parents who want to know what rights their children have, as well as teachers who want to know how to address the issue with their students, if at all.

The Barnette ruling

There are two main Supreme Court cases that apply to this issue: West Virginia State Board of Education v. Barnette (1943), commonly called “Barnette,” and Tinker v. Des Moines Independent Community School District (1969), commonly called “Tinker.”

Barnette was a follow-up to 1940’s Minersville School District v. Gobitis. In both cases, the plaintiffs were acting on behalf of Jehovah’s Witness children. The argument was that, according to the tenets of the Jehovah’s Witness faith that the children followed, saying the Pledge was a violation of their prohibition on idolatry.

In Gobitis, the Supreme Court ruled that the Pledge was not sufficiently religious in nature. It ruled in favor of the school district. Note that this was before President Eisenhower added the words “under God.”

Several years later, though, the Supreme Court took up the broader question as to whether compelling students to say the Pledge was a free speech violation.

In Barnette, the Court ruled that, yes, it was. In that case, the key conclusion has been widely quoted: “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.”

The opposing conclusions of Gobitis and Barnette are crucial. The Court could have narrowly ruled that forcing the Pledge is a religious violation, in which case students would have to have a religious reason to refuse to stand or recite.

Barnette’s decision is broader: Students don’t need a reason. For that matter, nobody needs a reason. No government agent, from the President to a public school teacher, can tell anyone else what to do during the Pledge of Allegiance, the National Anthem, or any other patriotic display.

For teachers, this means that it’s legally risky to ask students why they’re not standing. We can’t appear to be shaming or otherwise pressuring students. In general, it’s not our business why a student chooses not to observe the Pledge by standing and reciting it. They don’t have to. That’s it.

If we support their protest, we might be tempted to draw attention to it by urging them to explain their perspective to their classmates. Teachers, please, resist that temptation. Suggesting that students should NOT stand and recite the Pledge is just as much a violation as suggesting that they SHOULD. Independently of the Pledge, consider whether you feel comfortable talking about politics, but don’t do it around the Pledge.

A strict reading of Barnette suggests that students don’t even have to sit quietly: They can chat with each other, or otherwise be distracting, and then argue that that’s how they observe the Pledge.

For the issue of student disruptions, there’s Tinker.

The Tinker ruling

Superficially, Tinker isn’t about the Pledge. The case involved three public school students who wore black armbands to school to protest the Vietnam War. The school suspended the students.

The Supreme Court ruled that students can’t be punished for political speech or acts, under the First Amendment. Because the students would not have ordinarily punished for wearing armbands for a non-political reason (such as mourning), and because the students were not being disruptive, the school couldn’t punish them.

Tinker was cited often at the end of the last school year, when many students protested the role of gun law policy and enforcement, and other safety issues, following the mass shooting at Marjory Stoneman Douglas High School. The question that was raised was: What can schools do about it?

The answer: According to Tinker, schools cannot discipline students for walking out solely for political reasons. They can only discipline students for walking out if they ordinarily do so.

Many schools, for instance, opted to have the walk outs be limited to school campus. Under normal circumstances, students who leave campus during the school day are suspended, so they can be suspended here. But if students aren’t disciplined normally for leaving the building but not the property, that same rule applies here.

In the same way, students who sit or kneel as protest during the Pledge are protected under Tinker. Barnette means that schools can’t punish them; Tinker means that they can protest silently.

However, I believe Tinker provides wiggle room for teachers who don’t want students to talk during the Pledge. If there is a general classroom policy that students don’t talk over activities or announcements, and the Pledge is considered an activity or announcement, then students can be told not to be disruptive.

Which is to say, teachers shouldn’t say, “You don’t have to stand, but don’t talk during the Pledge.” Instead we should say, “Observe the Pledge as you see fit. Please remember that students are expected not to talk over announcements.”

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Most states have laws encouraging students to say the Pledge of Allegiance. In compliance with Barnette, these laws are often phrased in terms of giving students an opportunity to say the Pledge. Barnette and Tinker give students the opportunity to not say the Pledge, if that’s what they want.

Teachers, be mindful that students have the right to fail to observe the Pledge, for whatever reason they deem appropriate. It is not up to us to question another citizen’s patriotism, as strongly as we may feel about it.

Parents, be patient and understand that teachers have several dozen students, with often conflicting positions on this issue.

Some school administrators also have a poor understanding of student rights. Teachers, I understand that many of you struggle to navigate between the Supreme Court’s rulings and what your administrators tell you to do. Try your best to keep student rights first.

Originally published on The Good Men Project.

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