Academic

Coerced Symbolic Speech: Students Suspended for Failure to Stand During the Pledge of Allegiance

By Calvin Massey

  A Minnesota public school has suspended several junior high school students for their failure to stand during a voluntary recitation of the Pledge of Allegiance.  Here is a news account.  Note that the students were not suspended for failing to recite the Pledge.  Forced speech is, of course, presumptively invalid and Barnette v. West Virginia Board of Education struck down a forced flag salute by public school students.  Here, the students were disciplined for their failure to stand while other students voluntarily recited the Pledge.  An ACLU spokesman, quoted in the linked article, asserts flatly that the suspension is unconstitutional.  But is it?  Is it a form of coerced symbolic expression?  Does standing silently while others recite the Pledge carry an intention of endorsing the Pledge, and would onlookers perceive it as such?  Alternatively, does the requirement that the student stand mutely prevent the student from whatever symbolic expression is inherent in sitting during the Pledge?  Again, what was intended and what would be perceived?  The mother of a suspended student quoted in the article says he did not mean to convey any message of unpatriotism.  So, does this raise any heightened level of scrutiny under free speech doctrine?  The issue is reminiscent of Lee v. Weisman, but Lee involved the establishment clause, not free speech, and psychological coercion was at the heart of the Court's Lee rationale.  Should the same principle apply here, in a purely free speech context?  So far, the Court has limited its forced speech rulings to cases of explicitly coerced speech.  Rumsfeld v. FAIR rejected the contention that equal treatment for military recruiters on law school campuses was a form of coerced expression.  There, the Court stated that if words are necessary to explain the symbolic expression, the conduct in question is not symbolic speech.  This case appears to be on the line.  Finally, given the fact that this occurs in a school context, are there legitimate pedagogical reasons to require everyone to stand for the Pledge, even if one doesn't say the words?  Perhaps toleration of sitters contributes to a climate of sullen disrespect that hinders school business.  It's impossible to know these important facts from the news account.  Thus, I don't agree with the ACLU spokesman that the suspension is so clearly unconstitutional, but I do think that it raises some serious issues of possible symbolic expression.

Full post as published by The Faculty Lounge on May 09, 2008 (boomark / email).