My father defended a state that compelled students to salute the flag. He lost the case.
"A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." (West Virginia State Board of Education v. Barnette, 1943)
The attacks of Sept. 11 taught our nation that some in the world scorn our democracy, our freedoms, and our modernization. Now is the time to relearn the lessons of democracy. As the historian Diane Ravitch, a former assistant U.S. secretary of education, said so well in these pages, "If we value our rights and freedoms, we must understand how we got them and what it would mean to live in a society that did not have them." ("Now Is the Time to Teach Democracy," Commentary, Oct. 17, 2001.)
From the ashes of the World Trade Center, the Pentagon, and the crash site in Pennsylvania should rise a renewed vigor to educate our young to the benefits and duties of citizenship in a democracy. And that education must include "scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." So said the U.S. Supreme Court in its findings in the World War II-era flag-salute case, West Virginia v. Barnette, a landmark case in constitutional and school law.
In the aftermath of "9/11," a worried superintendent in Colorado asked me if I thought we needed state laws that could clarify for school districts how to handle flag desecration on the part of students, including refusal to salute the flag. The conversation went something like this:
"Shouldn't we ask the legislature to give us a resolution or law about what is acceptable flag use?"
"The flag issue is as important today for all of us as it has ever been. In light of First Amendment issues, and because state policy already gives districts authority to control disruptive behavior, it may not be necessary to require or encourage school districts to adopt a policy on flag desecration."
"Well, I am feeling a lot of pressure in my community to do something. In fact, I am ready to have my principals announce to their students that at the next school assembly we will say the Pledge of Allegiance to the flag, and we will remove any student who refuses to salute the flag."
"While I am no lawyer," I said, "I am the daughter of the lawyer who argued the flag- salute case before the U.S. Supreme Court in 1943. My father defended a state that compelled students to salute the flag. He lost the case. This issue has had its day in court in another era of war and high patriotism."
I then recounted my story, my lesson in democracy, to him. My father, W. Holt Wooddell, served as an assistant to West Virginia's attorney general. In 1943, he argued the flag-salute case before the Supreme Court. The issue involved a flag-salute law and regulations adopted by West Virginia's state board of education that required all teachers and students in the public schools to salute the flag. Refusal to salute the flag was regarded as an act of insubordination to be dealt with by expulsion. The expelled child was considered unlawfully absent and could be treated as a delinquent, making the parents liable to prosecution and subject to fines or imprisonment.
Jehovah's Witnesses, who teach a literal version of the book of Exodus forbidding the worshipping of an image, brought the suit. They consider the flag to be an image and the salute to be "bowing down to an image." The Witnesses alleged that the law and its regulations were an unconstitutional denial of religious freedom and freedom of speech. In addition, they argued that due process and equal protection were denied. Therefore, this state law challenged the freedoms guaranteed under the First and 14th Amendments to the U.S. Constitution.
The state of West Virginia argued that the law did not violate any of the provisions of the Constitution, and that failure to salute the flag as required by state law constituted "a clear and present danger to the community." This was an act promoting good citizenship and was not intended to offend religious scruples, according to the state.
As the argument unfolded that spring, my father recognized the court's opinions and observations that would, ultimately, overrule the enforcement of the West Virginia law. In a letter to my mother, he lamented "all this waiting and expense for a case I could not win by any stretch of the imagination." And he told her, "I have concluded that I'll use some very plain language of unmistakable meaning in my remarks to the court."
His "remarks" admonished that judges should be disinclined toward making judgments against a state in determining matters of social concern and importance to the people of that state. In other words, judges should not restrict the powers of democratic government.
Agreeing with this point was the lone dissenting judge, Justice Felix Frankfurter. He argued that the court should not substitute its own judgment for that of an elected legislature. Justice Frankfurter offered this: "I cannot bring my mind to believe that the 'liberty' secured by the due-process clause gives this court authority to deny to the state of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen."
The Supreme Court, on the other hand, determined that the "sole conflict is between authority and rights of the individual." The state made the flag salute a condition, said the court, for access to public education. In effect, the court said "a pox on both your houses." It determined that it was appropriate to compel the flag salute in the classroom, but that individuals may refuse to stand and give the salute.
A recent article in The Denver Post quoted teachers around Colorado as working daily to present the current world conflict in a context that helps students "unravel the layers of history" behind the immediate issues. One student said, "I used to think a flag symbolized our country. Now I know it means a way of life. We're not too young for this stuff."
My generation began school in the years following the flag-salute case. I do not recall either my parents or my teachers telling us we had to salute the flag or that we had a choice in the matter. It took the Vietnam War and another generation to challenge the traditional oath and re-examine that lesson in democracy. I do recall growing up believing in a system of government that allows the individual freedom to do what he or she thinks best within the parameters set by our Constitution and a common set of laws. It was public school teachers who increased my understanding of civic virtue and helped shape my respect for justice and social responsibility. The public schools I attended developed within me a passion for the "particular functions of public education" best articulated in yet another court case, Bethel v. Fraser (1986): "the inculcation of the habits and manners of civility; the propagation of the values of a democratic society; and the teaching of the boundaries of appropriate behavior."
In an Oct. 7, 2001, article in The New York Times Magazine, the writer Andrew Sullivan sums it up this way: "We are fighting not for our country as such or for our flag. We are fighting for the universal principles of our Constitution—and the possibility of free religious faith it guarantees."
I concluded my conversation with my superintendent friend with this:
"It is not so much about every student saluting Old Glory as it is about the teachable moment to instill an unflagging sense of patriotism and to win new glory for our Constitution through the lessons of democracy and the sacrifices each of us will need to make for our freedoms."
Jane W. Urschel is the associate executive director of the Colorado Association of School Boards in Denver. Her father, W. Holt Wooddell, argued for the state of West Virginia before the U.S. Supreme Court in the landmark 1943 flag-salute case, West Virginia State Board of Education v. Barnette.
Vol. 21, Issue 19, Page 31Published in Print: January 23, 2002, as Unflagging Patriotism