Law & Courts

Pledge Stands for Civics And Dissent in Schools

By Michelle Galley — October 29, 2003 7 min read
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When Ebony Jaja’s 12th grade class at Central Senior High School in St. Paul, Minn., stood to recite the Pledge of Allegiance one day this fall, Ms. Jaja decided to stay in her seat.

Her choice, which she has said was for personal reasons that she declines to discuss, landed her in the hallway at the request of her teacher. In Minnesota, a new law requires schools to lead students in reciting the pledge. That mandate has led to some confusion in the classroom over how teachers should treat students who refuse to take part.

The Central Senior High episode was promptly resolved when Mary Mackbee, the principal of the 2,100- student school, informed her staff that students are indeed permitted to stay in their seats during the pledge.

With the U.S. Supreme Court agreeing this month to review a legal challenge to school-led recitations of the pledge, new attention is being focused on a century-old American tradition that takes only seconds during the school day.

Several states have recently joined the list of those that call for schools to lead the pledge. Some of those laws have gone too far, courts have ruled, by requiring students to participate or demanding parental notification or approval when students refuse to say the pledge.

The national debate about the pledge has meant new challenges for administrators and teachers wishing to inculcate American civic virtues while also being mindful of the rights of dissenters.

“Educators want clarity,” said Lisa A. Brown, a Houston lawyer who filed a friend-of-the-court brief in the Supreme Court case on behalf of 10 state associations of district school boards. The brief urged the court to review a controversial federal appeals court ruling on the pledge.

The justices on Oct. 14 agreed to hear the appeal in Elk Grove Unified School District v. Newdow (Case No. 02-1624). The case raises the question of whether public schools violate the First Amendment’s prohibition on a government establishment of religion by leading the pledge, because of its reference to “one nation under God,” added by Congress in 1954. (“Pledge Case to Go Before High Court,” Oct. 22, 2003.)

A ‘Fixed Star’

Thirty-five states require their public schools to lead students in reciting the pledge, according to the Education Commission of the States, in Denver.

Laws in seven of those states also require students to say the pledge, even though legal experts agree such language is not enforceable because of the Supreme Court’s 1943 ruling in West Virginia State Board of Education v. Barnette. In that landmark decision, the court ruled for a family of Jehovah’s Witnesses that the government could not compel schoolchildren to recite the pledge.

“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 high court said.

The Barnette ruling was at the center of recent controversy over a Colorado passed this year. The law requires that all public school students and teachers recite the Pledge of Allegiance at the beginning of each school day, unless they object to it on religious grounds or a parent files a written request to excuse a student for any reason.

The American Civil Liberties Union of Colorado challenged the law, arguing that students should be allowed to choose themselves not to say the pledge for any reason, not just because they disagree on religious grounds.

“The First Amendment is well known for protecting the right to speak,” said Mark Silverstein, a lawyer for the ACLU of Colorado. “But it also protects the right to refrain from speaking.”

Moreover, the ACLU objects to the provision on written parental permission for students to be excused from saying the pledge, as well as the law’s requirement that teachers, in leading their classes, also recite the pledge daily.

“If a teacher objected,” Mr. Silverstein said, “they couldn’t even get a letter from their parents.”

On Aug. 15, U.S. District Judge Lewis T. Babcock, of Denver, expressed doubts about the law’s constitutionality, and he granted the ACLU’s request for a temporary restraining order blocking it from taking effect. The judge also granted the state’s request for time to revise the law during Colorado’s 2004 legislative session.

Texas is the only other state that requires students to provide written excuses from their parents to opt out of reciting the pledge, according to Jennifer Piscatelli, a researcher with the ECS. Texas is also one of at least 10 states that have pledges to their state flag, but it is the only one that also requires students to recite such a state pledge.

The ACLU is considering filing a lawsuit against Texas because it requires student recitation of both the national and state pledges, said to Emily Whitfield, a spokeswoman in the organization’s national office in New York City.

Chilling Speech

Parental notification was also at issue recently in a lawsuit over a 2002 Pennsylvania law that requires schools to lead students in the Pledge of Allegiance or the national anthem. The law covers both public and private schools as long as its provisions did not violate a private school’s religious convictions.

Under the Pennsylvania statute, students may decline to recite the pledge and may refrain from saluting the flag “on the basis of religious conviction or personal belief.” But schools were required to notify parents when their children decided not to participate in the patriotic exercises. The law was challenged in a federal lawsuit brought by a public school family and four private schools.

The parental-notification clause “was clearly designed to stop kids from not saying the pledge,” said Maxwell Mishkin, a 16-year-old high school student in Wynnewood, Pa., who challenged the law along with his parents.

“My case had nothing to do with the content of the pledge,” he added. “I really like the Pledge of Allegiance, but I think it is wrong to force kids to say it.”

In July, U.S. District Judge Robert F. Kelly, of Philadelphia, struck down the law, ruling that the mandatory parental notification “would chill the speech of certain students who would involuntarily recite the pledge ... rather than have a notice sent to their parents.”

While there is wrangling in the states over the details of laws requiring the pledge in schools, many organizations are gearing up to use the Supreme Court case over the inclusion of “under God” as the backdrop for a larger debate about the value of the oath.

The brief filed by 10 school boards’ groups in the Newdow case emphasizes the pledge’s traditional role in schools.

“More than just a throwaway moment after the ringing of the morning bell, the Pledge of Allegiance represents an opportunity for a classroom of children to reflect on a common purpose and national identity,” the brief says.

Schools still need clarity from the Supreme Court regarding their policies on the pledge, said Ms. Brown, the lawyer representing the school boards’ groups.

“The Pledge of Allegiance is a ritual or ceremony that promotes cultural cohesion among a diverse groups of students,” she said. Teachers often use it as a jumping-off point for civics lessons, she added.

A Good Lesson

Civil liberties groups point out that the pledge, through the legal challenges related to it, can also provide valuable lessons about individual rights.

In Minnesota, the law requiring schools to lead the pledge, which took effect this fall, brought much confusion, said Charles Samuelson, the president of the Minnesota chapter of the ACLU.

“Basically, no one had any guidelines, so everyone interpreted the law differently,” he said.

The incident involving Ms. Jaja at St. Paul’s Central Senior High was just one of dozens of misinterpretations of the law that occurred around the state at the same time, Mr. Samuelson said.

“Everyone knew [students] had the right to opt out, but they didn’t know what that meant,” he said.

St. Paul district officials later sent an e- mail to every district employee clarifying the law and its “opt-out provision,” said Steve Linders, a spokesman for the 43,000-student district.

While the question of how schools should handle students who opted not to recite the pledge became emotionally charged, Mr. Linders said that, in the end, “it was a good lesson in civil rights.”

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