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Legal Features

Schools Should Back Freedoms

By Nat Hentoff
From The Freelance Star

Years ago, I was in the chambers of Supreme Court Justice William Brennan, a persistent defender of the First Amendment and the rest of the Bill of Rights. I was writing a profile of him for The New Yorker, and I asked him which of those first 10 amendments were most important for the protection of our individual liberties against the government.

''The First Amendment, of course,'' Brennan said immediately. ``All the rest of our liberties flow from our constitutional rights of free speech, free exercise of religion, freedom of assembly, freedom of association -- and the right to criticize our government.''

That day, on another assignment, I was on my way to rural Pennsylvania where I had been asked to talk to middle-school and high-school students about the Bill of Rights, including the First Amendment.

''It is so necessary,'' Brennan said, ``to get the words of the Bill of Rights off the pages and into the lives of students. Therefore, tell them stories. Tell them how we earned those rights and liberties.''

And that's what I did. Some of the teachers in those schools told me, before I started speaking to the students, not to be disappointed if they didn't pay much attention. ''They're more interested in music and clothes,'' the teachers warned me.

Those teachers were wrong, and Brennan was right. Once the students heard how the oldest living constitution in the world distinguishes us from all other nations, they were eagerly interested in hearing more.

One story I told them was how children of the Jehovah's Witnesses religion had been expelled from the public schools of West Virginia more than 50 years ago because they refused to salute the flag. This was not because they did not love this country but rather because their religion taught them not to bow to ''images'' -- and that included the flag.

Not only were they expelled from school but also their parents were subject to be prosecuted for complicity in their children's delinquency.

The parents went to court, and eventually the case came before the Supreme Court of the United States. Writing for a majority of the court -- in West Virginia Board of Education vs. Barnette -- Justice Robert Jackson, who was later to be the chief prosecutor of Nazi criminals during the Second World War -- ordered the children back to school.


In doing so, he not only defined the essential meaning of the First Amendment but he also, in his view, provided a definition of what it is to be an American:

''If there is a fixed star in our constitutional constellation,'' Jackson ruled, ``it is that no official, high or petty, can prescribe what shall be orthodox politics, nationalism, religion or any other matters -- or force citizens to confess by word or act their faith therein.''

Each of us, as Americans, he emphasized, have freedom of conscience, and no agency of the state cam force us to express beliefs in politics, religion or anything else that we do not believe.

Moreover, Jackson, in that decision, sent a vital message to boards of education, principals and teachers about the actual First Amendment rights of students as they learn about its history and how it affects each of their lives:

Those, he said, who are ''educating the young for citizenship'' must scrupulously protect ``the Constitutional freedoms of the individual if we are not to strangle the free mind at its source and teach youth to discount principles of our government as mere platitudes.''

Clearly, Jackson was referring, in part, to the West Virginia Board of Education, which had shown no respect for the First Amendment-protected religious beliefs of the Jehovah's Witnesses children -- or for their other First Amendment guarantee, to exercise their right to free speech to refuse to be coerced by agents of the state.

I also spoke to the students in rural Pennsylvania about cases I have written about in which high-school valedictorians had been prevented by their principals to say in their speech at graduation that they not only wanted to thank their parents, and particular teachers, but also Jesus Christ for sustaining them in their years in school.

These students were told that any reference to their religion violated the constitutional separation of church and state when expressed during graduation exercises in a public school.

This restriction of a valedictorian's speech and religion -- which is not uncommon in schools around this country -- misunderstands what the First Amendment is all about.


If a public-school principal or a school board orders a student to cite religion in a commencement speech, that is a violation of the First Amendment. It is state action commanding a student to express such a belief.

But if a student wants to thank Jesus Christ or Allah or his or her Jewish heritage in the course of a graduation speech, there is no state action, because it is the personal belief of the student.

In writing this, I can express my First Amendment right by stating that my respect for individual religious beliefs does not mean that I personally have any religious affiliations. I am an atheist. When I am asked my religion, I always say, ``the Constitution of the United States.''

And when I visit schools, I also tell students that it is especially essential to protect the First Amendment in wartime -- including in our present war against homicidal terrorists around the world.

During the Civil War, Abraham Lincoln suspended habeas corpus, which is called ''the Great Writ'' in a constitutional democracy. It is the right of an imprisoned individual to go to a court and make the government prove the legality of his imprisonment. With that fundamental right suspended, there were military arrests of Americans who disagreed with President Lincoln about the Civil War and his conduct of it.

In 1866, the U.S. Supreme Court, in a landmark decision, Ex parte Milligan, declared that what Lincoln had done, with the subsequent approval of Congress, had been unconstitutional because these military arrests, under the suspension of habeas corpus, had taken place while the civilian courts were still open.

Said the Supreme Court: ``The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. The Government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence.''

And we Americans -- to preserve why we are Americans -- must remind any forgetful government that the Constitution cannot be put aside, especially in time of war, because what we are fighting to protect against lethal enemies is who we are in this world -- a constitutional democracy.


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