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Can Students Be Punished For Refusing To Recite The Pledge Of Allegiance?

The Pledge of Allegiance is so ubiquitous in American society that it often falls into routine without second thought. The school day often opens with students standing from their chairs, facing the American flag with hand over heart and reciting the pledge. Almost all government meetings open with all persons present standing at attention and proclaiming their loyalty to their country. It is so routine that there is often shock and surprise when someone present in the room is not conforming to the recitation of the pledge. These incidents sometimes result in unfortunate consequences.

On February 4th, 2019, a sixth-grade student in Lakeland, Florida refused to stand with the rest of his classroom to recite the pledge to the flag. The student, an 11-year old African-American male, reportedly told the substitute teacher that he believed the flag and the national anthem are "racist" against black people. The substitute teacher fired back, reportedly telling the student that if the United States is "so bad", why doesn't he find another country to live in. After the contentious exchange began to escalate, two administrative officials came to the classroom to bring the student to the school office. The student refused to go and accused the staff of being racist. Ultimately, this 11-year old student was arrested for creating a disturbance, making threats and resisting the administrative official's attempts to leave the classroom.

As expected, this incident became a polarizing issue in the media. The school responded that the student was arrest for the loud disruption and threats that he made to hurt staff. Other groups, including the American Civil Liberties Union, retorted that the whole incident started due this student exercising his right not to recite the Pledge of Allegiance and that the overreaction was racially motivated. The end result was that the student was taken to a juvenile detention center and suspended for three days. The school district later stated that they "do not condone" the substitute teacher's behavior in this situation and released her from employment.

This uproar begs asking the key question: Can a school district punish a student for refusing to recite the Pledge of Allegiance?

The issue is actually a settled law in this country that the substitute teacher was wholly ignorant of. In West Virginia State Board of Education v. Barnette, 319 U.S. 624; 63 S.Ct. 1178; 87 LED. 1628 (1943), the U.S. Supreme Court held that the Free Speech Clause of the United States protects students from being forced to salute the flag or recite the Pledge of Allegiance in public school. In that case, the two students, being sisters, were Jehovah's witnesses who were instructed by their father not to salute or recite the pledge because their religion forbade them from saluting or pledging to symbols (including those belonging to political and civic institutions) as it violated the Ten Commandments. The West Virginia Board of Education had passed a resolution in January 1942 making it a requirement in all public schools that teachers and students engage in a daily salute and pledge to the flag. Failure for students to comply resulted in expulsion from school until compliance was achieved. The family filed suit against the Board of Education seeking an injunction against enforcing this rule.

A three-judge panel of the U.S. District Court in West Virginia ruled that resolution was unlawful and should be enjoined. The West Virginia Board of Education appealed to the United States Supreme Court in hopes of overturning this injunction. In affirming the lower court decision, Justice Robert Jackson stated the following in his majority opinion:

"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. 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." Id at 642.

This remains the law of the land today. In Michigan, lawmakers have passed resolutions protecting the free speech right to not salute the flag or recite the Pledge of Allegiance despite the continuing ignorance of teachers to observe the law. In 2017, a Farmington Public Schools teacher and a substitute teacher was accused of forcing a sixth-grade to stand for the pledge after the student apparently refused to get out of his chair. This incident caused unfavorable media attention to the school which resulted in the teacher being placed on administrative leave and the substitute teacher being barred from employment at the school district.

The current Michigan legislation regarding the pledge of allegiance, signed into law by Gov. Snyder and taking effect October 5th, 2012, states as follows:

  • "Beginning with the 2013-2014 school year, the board of a school district or intermediate school district or board of directors of a public school academy shall ensure that an opportunity to recite the pledge of allegiance to the flag of the United States is offered each school day to all public school pupils in each public school it operates." MCL 380.1347a(1).
  • "A pupil shall not be compelled, against the pupil's objections or those of the pupil's parent or legal guardian, to recite the pledge of allegiance." MCL 380.1347a(2).
  • "The board of a school district or intermediate school district or board of directors of a public school academy, and the school administrator in charge of a school building, shall ensure that a pupil is not subject to any penalty or bullying at school as a result of not reciting the pledge of allegiance." MCL 380.1347a(3).

Under Michigan law, a student has the right to have an opportunity to pledge allegiance to the flag and a student also has the right to NOT participate in a pledge or salute. Hopefully, school districts across the state and the nation take the time to properly train their employees in the First Amendment rights enjoyed by all students so that the unfortunate event in Florida does not ever happen again.

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