Can schools require students to say the Pledge of Allegiance?

Can schools require students to say the Pledge of Allegiance?
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A recent dispute at a Florida public school related to the Pledge of Allegiance raises an interesting question about student rights, at least in two states.

The dispute, according to school and police reports in Lakeland, Florida, started when a student and substitute teacher argued over the student’s refusal to take part in the pledge in class. The student was arrested after the dispute, police said. And the school district said, “To be clear, the student was NOT arrested for refusing to participate in the pledge; students are not required to participate in the Pledge of Allegiance.”

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The student’s mother told a local television station she wanted the charges dropped, and the school should be disciplined for its actions, and not her son. The story soon received national media attention. 

But lost in that attention is a debate about a seemingly settled constitutional precedent: the right of students to opt out of the pledge at public schools. In 1943, the Supreme Court ruled in West Virginia State Board of Education v. Barnette that “the Free Speech clause of the First Amendment prohibits public schools from forcing students to salute the American flag and say the Pledge of Allegiance.”

"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," said Justice Robert Jackson in his famous opinion.

The National Constitution Center looked at the Pledge of Allegiance statutes or other guidance for all 50 states. In all, 32 states have laws or guidelines that specifcally say students can opt of the pledge on their own. Another 15 states have statutes that are unclear, delegate the choice to local schools or parents, or seem to indicate students must take the pledge. And three states (Iowa, Vermont and Wyoming) don’t have state pledge laws.

Of the states that seem to require the pledge, there is leeway for schools to allow students to not take it. Georgia’s law, for example, reads that “each student in the public schools of this state shall be afforded the opportunity to recite the Pledge of Allegiance to the flag of the United States of America during each school day.” But in guidance from the state’s Department of Education from 2006, public schools were told that “students not participating in the recitation of the Pledge may stand and refrain from reciting the Pledge or may remain seated.”

Massachusetts had its Supreme Judicial Court clarify the matter. In its 2014 decision in Doe v. Acton-Boxborough Regional School District, the court said students could not be compelled to recite the pledge. “It is undisputed, as a matter of Federal constitutional law and as a matter of fact on the summary judgment record before us, that no student is required to recite the pledge,” said Chief Justice Roderick Ireland.

However, two states, Florida and Texas, have seen their pledge statutes tested in court, since they require permission from a parent or guardian for a student to decline to take part in the pledge. 

In Texas, one dispute seemingly ended in December 2018. A high school senior, India Landry, sat during the Pledge of Allegiance at her school and was expelled. Landry sued the school and the state of Texas intervened in the lawsuit

“The U.S. Supreme Court has repeatedly held that parents have a fundamental interest in guiding the education and upbringing of their children, which is a critical aspect of liberty guaranteed by the Constitution,” Texas Attorney General Ken Paxton said. “The Texas Legislature protected that interest by giving the choice of whether an individual student will recite the Pledge of Allegiance to the student’s parent or guardian. School children cannot unilaterally refuse to participate in the pledge.”

That case apparently ended in a settlement with a defendant. But federal district judge Keith P. Ellison had determined the case could move forward on First and 14th Amendment grounds before its dismissal.

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A case Ellison referenced in his decision, Frazier v. Winn, ended in a different way in 2008, when the 11th Circuit Appeals Court said Florida’s statute requiring parental permission was constitutional. “Although we accept that the government ordinarily may not compel students to participate in the Pledge, e.g., Barnette, we also recognize that a parent's right to interfere with the wishes of his child is stronger than a public school official's right to interfere on behalf of the school's own interest,” the court said in an unsigned opinion. “Most important, the statute ultimately leaves it to the parent whether a schoolchild will pledge or not,” the court explained. 

The United States Supreme Court didn’t grant an appeal in Frazier v. Winn. However, in 2010, Florida’s Department of Education advised schools the opinion left open “the possibility that the parental consent requirement can differ, or may not apply at all, depending upon the maturity of the student.”

Even for the most “fixed star” among Supreme Court decisions, the question over the Pledge of Allegiance is not entirely settled today, at least in Florida.

Scott Bomboy is the editor in chief of the National Constitution Center.