Pledge Problems

The Supreme Court Ruled 72 Years Ago That Public Schools Can't Force Students To Recite The Pledge Of Allegiance - Yet Some Officials Still Haven't Gotten The Message

Not long ago, an eighth-grade student at Wilson Middle School in Carlisle, Pa., was refused treatment by her school’s nurse simply because she declined to stand for the Pledge of Allegiance.

On April 2, the anonymous student happened to be waiting in the nurse’s office during the school’s Pledge time, and she did not stand – as was her usual practice – because she does not choose to participate in the exercise. When it was the student’s turn to see the nurse, the health-care professional made it immediately clear she was not pleased with the girl’s choice.

“‘Why didn’t you stand for the Pledge?’” the nurse allegedly demanded to know.

Upon being informed by the student that she had a constitutional right to remain seated during the Pledge, the nurse became irate – and shirked her duty.

“‘Fine!’” the nurse allegedly yel­led. “‘Then leave! I have the right to not service you!’” 

Unfortunately, this disturbing incident in Carlisle is hardly an outlier. Every year, public schools stumble into controversies over the Pledge of Allegiance – mainly because of the words “under God.” But even though the U.S. Supreme Court said in the midst of the Second World War that students have a First Amendment right to opt out of reciting the Pledge, overzealous teachers and school administrators sometimes misunderstand the law or simply ignore it.

Americans United receives a steady stream of Pledge-related complaints. They come in often enough that the organization has developed a low-key, yet effective, approach to instances of students being forced to participate in Pledge exercises. AU attorneys advise students (and/or their parents) that the Constitution does not permit the government, including public schools, to force anyone to say the Pledge against his or her  will.

The attorneys then give people who ask about this issue the applicable case law and other information to back up this position. Those with a complaint are then encouraged to talk to their school administration and to make sure they see the case law.

In AU’s experience, this normally resolves the matter. But if it does not, Americans United attorneys are available for further consultation or action, such as writing a letter to school officials.

Other groups are looking at the issue as well. Several of the Pledge cases that make it into the news, like the one in Carlisle, have been handled in recent years by the American Humanist Association (AHA) – with mixed results. In two other incidents earlier this year, a student in Fayetteville, Ark., and a student in Belfast, Maine, were both disciplined for not participating in their school Pledge exercise.

In Fayetteville, the student initially received a “disciplinary write-up,” according to the Little Rock  Democrat- Gazette. But school officials seemed to quickly realize they had made a mistake. District Superintendent Paul Hewitt later said he would educate his staff on student rights concerning the Pledge.

In Maine, the student was sent to the principal’s office for not standing, a move Regional School Unit 20 Superintendent Brian Carpenter later admitted was wrong, the Associated Press reported in March.    

In late 2014, a 17-year-old agnostic student in Tracy, Calif., received a double whammy when he refused to say “under God” in the Pledge. As part of a speech and debate class, West High School student Derek Giardina was assigned to lead the school in the Pledge 12 times during the year. The first two times he said “under God” over the school’s public-address system. The third time, he omitted the religious reference. In response, Giardina received detention and lost points on his assignment, reported a Sacramento television station.

When asked for comment on the matter, a district spokesman had little sympathy for Giardina – and failed to understand the law.

“A public forum where you’re going to represent the school is not a place where you can voice a controversial issue and force that on other people,” Sam Strube told the station. (At press time, the matter remained unresolved.)

While students have the right to opt out of the Pledge, some groups – mainly humanist and atheist organizations – would like to go further. In their view, the Pledge’s reference to God makes it inappropriate for use in public schools.

In court, this argument hasn’t gone over well. Several cases have been brought in the federal courts, and all have ultimately failed.

The AHA tried to raise the issue in two state courts, but neither was successful. The group sued the Matawan-Aberdeen Regional School District in New Jersey on the basis that atheist students are forced to hear the words “under God” in the Pledge daily and that this violates the state constitution’s Equal Protection Clause.

But after losing American Humanist Association v. Matawan-Aberdeen Regional School District in state trial court, AHA decided in April not to appeal the matter. This decision may have resulted from AHA’s experience in an earlier case. In a similar lawsuit, Doe v. Acton-Boxborough School District, which was filed in 2011, AHA appealed all the way to the Massachusetts Supreme Court – but lost in 2014.

As for the Carlisle situation, the eighth-grade student did not fare much better after leaving the nurse’s office. She reportedly attempted to call her mother from the school administrative office, but before she could, the nurse reappeared and allegedly said: “She isn’t calling a parent until I have a long conversation with her!”

The AHA has asked the school district for a public apology. The district has not yet commented beyond acknowledging the complaint. At press time, the situation remained unresolved.  

What surprises so many legal observers is that this issue continues to be a problem. From a legal standpoint, it was resolved more than seven decades ago in a landmark case called West Virginia State Board of Education v. Barnette. That 1943 case, brought by Jehovah’s Witnesses, resulted in a high court ruling making it clear that public schools can’t compel students to recite the Pledge if they had an objection to it.

But Pledge controversies have a longer pedigree. In 1935, 12-year-old Lillian Gobitas was attending an elementary school in Minersville, Pa. She and her family were Jehovah’s Witnesses, and Lillian and her brother, William, had decided they would no longer participate in the mandatory Pledge of Allegiance. As a result, they were expelled that day. (Jehovah’s Witnesses believe that flag salutes are a form of idolatry. Their only allegiance, they believe, is to God. Citing religious freedom and the right of conscience, the children refused to take part.)

The case went all the way to the Supreme Court. In a surprising 1940 decision, the high court ruled 8-1 against the Gobitas family in Minersville School District v. Gobitis. (Due to a printer’s error that was never corrected, the family’s name is forever misspelled as “Gobitis” on the legal documents.) Public school students, the justices said, could be compelled to recite the Pledge of Allegiance as a way of fostering “national cohesion.”

The fallout from the Gobitis ruling was swift and fierce. World War II was under way in Europe and Asia, and this was not a time when anyone wanted to have their patriotism challenged. Witness children were expelled from schools around the country, and adult Witnesses were at­tacked by mobs. A mere two weeks after the Gobitis ruling, the U.S. Department of Justice had recorded hundreds of attacks on Witnesses nationwide.

It was immediately clear that the high court had made a mistake. Perhaps for that reason, in 1942 the Supreme Court accepted an identical flag-salute case, this one from West Virginia. There had been a few changes on the court since 1940, and this time the justices got it right. Ruling 6-3 in Barnette the following year, the justices declared that public schools may not violate students’ rights of conscience by requiring flag salutes and recitation of the Pledge.

The decision is notable for this eloquent passage by Justice Robert Jackson:

“If there is any fixed star in our constitutional constellation,” Jackson observed, “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.”

Although many disputes about the Pledge these days center on the words “under God,” that phrase didn’t appear in the Pledge when Gobitis and Barnette were argued.

Nor does the Pledge go back to the founding period; it was a much later invention. The Pledge was written in 1892 by Francis Bellamy, an author, Baptist minister and socialist. Bellamy, who was then an editor at a magazine called the Youth’s Companion, was assigned to come up with something patriotic that school children could recite in conjunction with the 400th anniversary of Christopher Columbus’ voyage, as well as to mark the World’s Fair in Chicago.

The original version of Bellamy’s Pledge read, “I pledge allegiance to my flag and the Republic for which it stands – one Nation indivisible – with liberty and justice for all.”

There was also a monetary angle to the exercise. At the time, public education was just catching on in America, and states were starting to pass laws mandating that children receive some sort of formal schooling. Youth’s Companion made a bundle selling flags to these newly minted schools.

Still, it’s telling that a Baptist minister chose not to add religion to his Pledge, especially since it was written during a time when the idea of the United States as an officially “Christian nation” was popular.

So how did those words get in there? Over the years, the language of the Pledge was tweaked, but it was not until 1954 that “under God” was added to it after a lobbying campaign led by sectarian pressure groups, chiefly the Knights of Columbus, a Catholic fraternal order. The push for a godly Pledge landed on receptive ears in the U.S. Congress, where many members were fearful of the potential spread of Communism.

Lawmakers added God to the Pledge in part to differentiate America from what they called the “godless communists” of the Soviet Union. President Dwight D. Eisenhower, who believed that the government could use generic religious language to spur patriotism, signed the measure into law.

The Pledge has been the subject of major controversy ever since. An atheist activist, Michael Newdow, has brought several Pledge-related cases in the federal courts, but they haven’t been successful. (One of Newdow’s cases reached the Supreme Court, which tossed it on the grounds of “standing” – ruling that Newdow didn’t have the legal right to bring the case.)

Other courts have maintained that the Pledge, despite its religious content, is primarily a patriotic exercise.

 Ultimately, it does not matter why a student objects to participating in a Pledge exercise as far as the Constitution is concerned – the First Amendment protects the rights of all who do not wish to say it. As a result, more often than not schools end up apologizing to students whom they punished because of their beliefs.

That was the case at Oak Park High School in California, where a ninth-grade student was allegedly harassed last year by his teacher to the point that he felt compelled to stand during the Pledge. Oak Park Unified School District superintendent Anthony Knight eventually apologized for the teacher’s behavior.

“It was a mistake,” he said in September, according to the Los Angeles Times. “Compelling a student to stand or participate in any way is considered a violation of the student’s First Amendment rights to free speech and expression. There may be a commonly held misunderstanding that students can decide to refrain from saying the Pledge but can be required to stand out of respect. This is not correct.”

Pledge protestors these days come in many stripes. Some are atheists offended by the Pledge’s religious content. Others simply don’t believe in making any statement that smacks of a loyalty oath to the government. Still others sit out as a way to express dissent from government policies. (Jehovah’s Witnesses still opt out.)

The issue raises strong emotions on both sides – a sure recipe for continued controversy.