Legal Feature


Do Public School Students Have a Right to Refuse to Recite the Pledge of Allegiance?



October 16, 2015

In 1943, the United State Supreme Court established that the First Amendment prohibits public schools from requiring students, on pain of expulsion, to salute the U.S. flag and recite the Pledge of Allegiance. 

The Court’s decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), reversed a decision from three years previously[1] and established a student’s right to liberty of conscience outweighs any interest the state may have in fostering and inculcating patriotic values. 

The lawsuit in Barnette was brought by Jehovah’s Witnesses whose children were threatened with expulsion from the schools and being sent to reformatories if they refused to comply with a resolution of the state board of education requiring all students to salute the flag and recited the Pledge of Allegiance.  This patriotic demonstration violated the religious belief of Witnesses against bowing down to any graven image, and the Supreme Court ruled that the state did not have the authority to compel persons to violate their religious belief by engaging in that secular ritual.

However, the Barnette decision did not limit the right to refrain from the flag salute and pledge to those with religious scruples; the Court also recognized that the First Amendment’s guarantee to freedom of speech protected students who are unwilling to express fealty to the flag. 

In one of its most ringing endorsements of personal liberty, the Court wrote:

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. If there are any circumstances which permit an exception, they do not now occur to us.

Barnette, 319 U.S. at 642. 

Thus, students may not be compelled to recite the Pledge of Allegiance if they choose not to, whether or not the objection is grounded in a religious belief.

The ruling in Barnette remains a cornerstone of precedent establishing the First Amendment rights of students and has been extended in subsequent cases.  For example, schools may not require students to stand during the Pledge of Allegiance.[2]  Nor may students be required to leave the classroom during the recitation of the Pledge of Allegiance as a condition of their right not to participate.[3]  And students may not be subjected to retaliation, even something as mild as a verbal censure, for exercising their liberty of expression and conscience established in Barnette.[4]

The Rutherford Institute[5] has been a tireless advocate for the First Amendment and the rights enshrined therein, especially as they relate to the rights of students. Believing that students do not shed their rights at the schoolhouse gate, Rutherford Institute attorneys have fought in and out of the courtroom in defense of students who were punished for wearing American flag t-shirts to school, writing stories for school assignments that run afoul of zero tolerance policies, wearing Confederate flag t-shirts to school, mentioning God in graduation speeches, handing out candy canes at Christmas, voicing objections to curriculum that conflicted with their moral or religious views, criticizing the school administration in newspaper articles, wearing military t-shirts to school, voicing politically incorrect sentiments, and violating anti-bullying laws with simple statements of fact.[6]

The Rutherford Institute remains committed to standing in defense of America’s young people whenever and wherever their rights are violated.

For legal questions or assistance, visit www.rutherford.org or contact us at legal@rutherford.org.

 


[1] Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940).

[2] Banks v. Bd. of Pub. Instruction of Dade Cnty., 314 F. Supp. 285 (S.D. Fla. 1970), affirmed, 450 F.2d 1105 (5th Cir. 1971).

[3] Frain v. Baron, 307 F. Supp. 27 (E.D.N.Y. 1969).

[4] Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004).

[5] The Rutherford Institute is a national nonprofit civil liberties organization dedicated to the defense of constitutional freedoms.

[6] As referenced in John W. Whitehead, Battlefield America: The War on the American People (SelectBooks, 2015).