80 Years After S. Ct. Held Pledge of Allegiance Couldn't Be Mandated in Public School, Public School Seems to Try to Mandate It

Email from the school, as reported by FIRE.

 

From the Foundation for Individual Rights and Expression letter sent today to the Twin Ridge Elementary School (Maryland):

Our concerns arise out of an April 26 email TRES sent to school staff to address confusion regarding what conduct is required during the Pledge of Allegiance. The email  represented that per Maryland Education Code § 7-105(c)(3), "all students and teachers are required 'to stand and face the flag and while standing give an approved salute and recite in unison the pledge of allegiance.'" But the email failed to mention the opt-out provision of subsection (d), which states: "Any student or teacher who wishes to be excused from the requirements of subsection (c)(3) of this section shall be excused."

Not only does the TRES directive misrepresent Maryland law by suggesting it requires participation without allowing abstention, that misdescription of the law is one the First Amendment prohibits…. Over 80 years ago, in West Virginia State Board of Education v. Barnette, the Supreme Court invalidated a requirement that schoolchildren salute the U.S. flag and recite the Pledge of Allegiance. Even in the dark days of World War II, the Court recognized that requiring students to pledge allegiance to a national symbol is contrary to our national commitment to freedom of conscience. As the Court explained, "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." …

I called the school's main number to ask whether it had a statement, and the person answering the phones said she had no idea, and hung up on me. If any readers know of any errors in FIRE's account of the matter, please let me know; I have generally found FIRE's factual accounts quite trustworthy.

Comments

[LKB]

FIRE is, of course, correct on the law.

Now do it for mandatory "land acknowledgement" statements. And DEI loyalty oaths.

[Eugene Volokh]

LKB: FIRE has indeed criticized both mandatory land acknowledgment statements and required DEI statements (just to give two sample links), as have I.

[BB1234]

Is there any reason to think that this particular law will remain constitutional? Why is this different than any other “settled precedent”? Obviously I am not a lawyer but wouldn’t it make sense to ask for forgiveness later, you can presumably find a judge who would issue a nationwide injunction? Is it “obvious” that this wouldn’t have been reasonable 250 years ago?
Like, no joke, why should this school board not send this email and advance this policy? Sad, sure, but are they wrong to express their beliefs this way?

[Dilan Esper]

If someone's going to bring a challenge and seek to overturn a major SCOTUS precedent, that needs to be a policy decision made formally and with care, where you set up the facts in a particular way and make the challenge, and not some accident in sending out something like this. Remember, for instance, that a teacher enforcing this might end up being on the wrong end of a Section 1983 suit.

[MollyGodiva]

Or some football coach could pray at the half yard line and SCOTUS can adjust the facts to fit the ruling they want. That works too.

[Dilan Esper]

That was his own decision though. If a school district wanted to change its prayer policy to challenge Engel v. Vitale it would need to do it formally to protect its employees from suit.

[SMP0328]

Maybe somebody in the Maryland school system thought Minersville School District v. Gobitis, 310 U. S. 586 (1940) was still good law.

[ConservativeProfessor]

It is still good law if a plaintiff were to argue that mandatory recitation of the Pledge in public schools violated their religious liberty. Barnette didn't change that. What Barnette did was reframe the question from one of religious liberty to one of compelled speech. So, technically, Barnette did not overturn Gobitis.

[F.D. Wolf]

It's important to use proper Bluebook citation format when addressing an elementary school principal, as she will likely check your pinpoint citations.

[Randal]

If FIRE's letters were intended for the named recipients, FIRE'd send them to the named recipients.

[Currentsitguy]

I went to Catholic school They'd just beat you with a ruler.

[Rev. Arthur L. Kirkland]

They taught you nonsense. What was wrong with your parents?

[apedad]

Maryland Education Section 7-105
Article - Education

§ 7-105.
(a) This section is enacted so that the love of freedom and democracy, shown in the devotion of all true and patriotic Americans to their flag and country, shall be instilled in the hearts and minds of the youth of America.

(b) Each county board shall:

(1) Require the display of an American flag on the site of each public school building in its county while the school is in session;

(2) Buy all necessary flags, staffs, and appliances for the flags; and

(3) Adopt rules and regulations for the proper custody, care, and display of the flag.

(c) Each county board shall:

(1) Provide each public school classroom with an American flag;

(2) Prepare a program for each public school classroom for the beginning of each school day that provides for the salute to the flag and other patriotic exercises that are approved by the United States government; and

(3) Require all students and teachers in charge to stand and face the flag and while standing give an approved salute and recite in unison the pledge of allegiance as follows: "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all."

(d) Any student or teacher who wishes to be excused from the requirements of subsection (c)(3) of this section shall be excused.

(e) Each county board may provide for any other patriotic exercises it considers appropriate under the regulations and instruction that best meet the requirements of the different grades in the schools.

(f) Any individual who commits an act of disrespect, either by word or action, is in violation of the intent of this section.

[SMP0328]

(d) Any student or teacher who wishes to be excused from the requirements of subsection (c)(3) of this section shall be excused.

I don't think this provision saves the statute. In the school prayer cases, an opt-out wasn't sufficient for SCOTUS to allow teacher-led prayer in the public schools. I doubt there would be a different result in this case.

[Randal]

School prayer is Establishment Clause, the pledge is Free Speech. They have different standards around coercion... for now.

[mulched]

School prayer is an establishment clause issue, which this would not be.

Many differences between that body of law and free speech law that allow for a different outcome.

Dammit, Randal types faster.

[SMP0328]

Barnette seems to reject a free-speech/Establishment-Clause distinction in this case. A public school can't force/coerce its students to express a particular viewpoint, religious or otherwise.

[David Nieporent]

A public school can’t force/coerce its students to express a particular viewpoint, religious or otherwise.

Yes; that's what (d) says.

[Randal]

A public school can’t force/coerce its students to express a particular viewpoint, religious or otherwise.

A public school also can't force/coerce its students to participate, even passively, in religious activities. It can coerce them to passively participate in activities around non-religious viewpoints, including patriotic ones, as long as it doesn't require the students to affirmatively express or adopt those viewpoints.

[Krayt]

When I was a kid, we had to stand and say the pledge. A Jehovah's Witness kid would stand and not say it. This seemed weird to me but whatever. Was the standing required but did not reach religious infraction level?

[Currentsitguy]

We had a double whammy in my school. I went to a Catholic Hight School. One student there was Indian, as in her parents were from India and she was not a citizen and was of course Hindu. She stood quietly during Pledge as well as prayers/Mass.

She was never harassed or compelled. It all seemed to go well for all.

Bumped into her about a decade after graduation while visiting relatives in NOVA. Ended up sitting down with her and my now ex and getting utterly hammered at Capitol City Brewing. I never realized Indians drank like that.

[Rev. Arthur L. Kirkland]

Went well for all? Except for the nonsense-based education and repetitive waste of time on superstitious bullshit, you mean?

[ConservativeProfessor]

That's because the prayer cases were not about compelled speech; they were about state endorsement of religion.

The reason why SCOTUS struck down WV statute in Barnette was because an opt-out provision was not in the compulsory pledge law.

[John F. Carr]

I want to know the background on this. Not badly enough to FOIA the records.

It could have gone like

"Do students really have to stand and say the Pledge? Some don't want to participate in this imperialist propaganda."
"Yes, you can make them do it."

Then the iron fist of FIRE should smite them.

It could have been more like

"Teachers don't like wasting class time on this recital."
"Too bad, it's the law."

You can lead the horse to water even if you can't make him drink.

The county appears to be "purple", not strongly favoring either party.

[Bill Poser]

I suspect that many school principals are not aware of Barnette. This issue arose in my junior high school in 1969 when one teacher tried to force students to recite the Pledge. The principal put a stop to it when I told him about Barnette.

[MaverickNH]

In today’s age, when parents who won’t buy their kid a cell phone are guilty of child abuse and schools that ban cell phones are indicted by parents, allowing a few kids to stand out by not standing up for the POA just doesn’t cut it. That said, kids now undertake gender-identity, pro-Palestinian and other ‘minority’ movements as a form of self-ostratization to attain victimhood status before they attain adulthood status. It’s what they’ve learned from their elders.