In May 1977, Gov. Michael Dukakis of Massachusetts, acting on the advice of his state’s highest court, vetoed a bill requiring public-school teachers to lead their students in reciting the Pledge of Allegiance every morning.
Lawmakers voted to override the veto, and the law has remained on the books, unenforced and largely forgotten.
Now, some 11 years later, Governor Dukakis’s action has become one of the most hotly contested and highly publicized points of debate between the Democratic Presidential candidate and his Republican rival, Vice President George Bush.
At his party’s convention and in nearly all of his campaign stump speeches, Mr. Bush has drawn wide press attention by repeatedly hammering at the issue in an apparent attempt to raise questions about Mr. Dukakis’s patriotism.
The Vice President--whose platform pledges that “we will protect the Pledge of Allegiance in all schools"--tells his listeners that he would have signed the Massachusetts bill; occasionally, he invites audiences at the end of his address to join with him in reciting the pledge.
Mr. Dukakis has countered that the Vice President’s willingness to approve such an act demonstrates that he would violate his oath to uphold the Constitution and indicates that he is unfit to hold the nation’s highest office.
The Ruling at Issue
The crux of the debate is a 1943 ruling by the U.S. Supreme Court considered a milestone in education law.
It has been described by the constitutional scholar Laurence H. Tribe as one of those rare instances in which the Court “speaks in resonant tones on themes that transcend the outcome of a given controversy, and [goes] to the very heart of what we are as a nation.”
The case, West Virginia Board of Education v. Barnette, involved a rule adopted by the state’s school board in 1942 requiring public-school students to salute the flag and recite the Pledge of Allegiance daily.
Refusal to obey the rule, the state board had said, could be punished by expulsion, and parents who failed to force their children to comply could be fined $50 and jailed for up to 30 days.
Two years prior to the West Virginia board’s action, the Court voted 8 to 1 to uphold the constitutionality of such requirements in Minersville School District v. Gobitis, holding that Pennsylvania school authorities were free to select appropriate means “to evoke that unifying sentiment without which there can ultimately be no liberties, civil or religious.”
The flag-salute requirement had been challenged in that case by a family belonging to the Jehovah’s Witnesses, who claimed that compliance would force their children to disobey the Biblical command against idolatry.
In his recent book The Court and the Constitution, the former Water4gate special prosecutor Archibald Cox notes that persecution of Jehovah’s Witnesses increased sharply as a result of the Gobitis decision and patriotic fervor fueled by the nation’s imminent entry into World War II.
Widespread Persecution
“In some quarters, notably Texas, Witnesses were attacked by mobs for their refusal to salute the flag, and they were sometimes held as ‘Nazi agents,”’ he writes. “In Kennebunk, Me., Witnesses surrounded in the local Kingdom Hall opened fire on the mob stoning them, injuring several people. The hall was burned. The Governor called in the National Guard to restore order.”
The Barnette suit was filed by a Jehovah’s Witness, Walter Barnette, in the wake of several such incidents. It produced a historic turnaround on the Court, which voted 6 to 3 to reject the logic of the Gobitis decision.
The ruling offered what have since been cited as classic defenses of American pluralism.
“If there is any fixed star in our constitutional constellation,” wrote Justice Robert Jackson for the majority, “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. ...”
"[T]he actions of the local authorities in compelling the flag salute and pledge,” he continued, “transcend constitutional limitations on their power and invade the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”
“Those who begin coercive elimination of dissent,” the opinion warned, “soon find themselves exterminating the dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”
Disagreement on Teachers
Although constitutional scholars generally agree that the Barnette ruling protects students from being compelled to recite the pledge, debate persists as to whether it extends to teachers.
Unlike the rules at issue in Gobitis and Barnette, the Massachusetts statute imposes no penalty on students who decline to take part in the activity. Rather, it focuses solely on teachers, saying that those who refuse for two consecutive weeks to recite the pledge or fail to cause their students to do so can be fined a maximum of $5.
Although the Supreme Court has never directly addressed the question of whether teachers can be forced to participate in such patriotic displays, the Barnette ruling “makes it clear that the government has no power to force anyone to pledge allegiance to the flag if that person’s conscience would lead them to believe that it would be wrong,” says Mr. Tribe, who is a professor of law at Harvard University.
License Plates and Union Dues
Mr. Tribe cites as supporting that view a 1977 ruling by the Court that citizens of New Hampshire cannot be punished for covering up the state’s motto, “Live Free or Die,” on their automobile license plates, and a line of cases in which the Court has held that nonunion teachers and other workers cannot be forced to contribute to union activities that they find ideologically repugnant.
“If you can’t be compelled to contribute financially, you certainly cannot be compelled to mouth the words,” he says.
Mr. Tribe adds that it is “absurdly cynical” for the Vice President to suggest that Mr. Dukakis should have signed the disputed measure despite his misgivings and left it to teachers to fight the matter in the courts.
“It is completely predictable what the court would have held,” he says.
A ‘Shallow’ Reading Seen
But Bruce Fein, a conservative legal scholar who recently left the Heritage Foundation, argues that the outcome of such a case would not be so clear.
Mr. Dukakis’s reading of the Constitution “is very shallow and it is he who violated his oath of office by vetoing the bill,” he says.
Mr. Fein points out that in a 1979 case, Ambach v. Norwick, the Supreme Court ruled that a state may deny teacher certification to resident aliens who refuse to become naturalized citizens. In that case, the Justices reasoned that “a state may properly regard all teachers as having an obligation to promote civic virtues ... and take account of a teacher’s function as an example for students.”
The Norwick case, he says, makes it clear that “insofar as the pledge inculcates those values, teachers can be required to lead students in reciting the pledge because that is part of the curriculum.”
Mr. Fein also says Mr. Dukakis is wrong when he claims that an elected official cannot sign a presumably unconstitutional bill into law without violating his oath of office.
“A President cannot permit the Court to have the final say in these matters,” he said, noting that Lincoln’s Emancipation Proclamation ran counter to the High Court’s ruling in the Dred Scott case. “If a President fails to continue to debate and question, he resigns our democracy.”
