Academic

Update: Minnesota School To Amend Pledge Policy, Erase Suspension

By firstamendmentblogger

Calvin beat me to the punch with his insightful post on Monday regarding the pledge controversy that's been brewing in Minnesota.  Below is an update on developments, adding my take on Barnette (which I apparently read a bit more broadly than Calvin), and some context history buffs might find interesting.

Cross-posted from First Amendment Law Prof Blog:      

Four Minnesota students who were disciplined for exercising their First Amendment rights will  have their records cleared, a school administrator told a local paper on Saturday.  Three students were suspended last Thursday for violating a district wide policy that requires them to stand during the daily Pledge of Allegiance.  Though Minnesota state law reportedly gives students the option of whether or not to say the pledge, the school district policy requires students to stand while it is being recited by others.  A fourth student was suspended on Friday after he remained seated to protest the school's policy and the suspension his classmates received for breaking it.  He also said he sometimes chooses to remain seated during the pledge as a sign of protest of the Iraq war.  The ACLU of Minnesota sent a letter to the Superintendent of Schools urging that the policy be revised to protect the students' right to remain silent and seated, if they so choose, in a non-disruptive manner during the pledge.   

In West Virginia State Board of Education v. Barnette (1943), the Supreme Court recognized that students have a First Amendment right to refuse to recite the pledge.  The Court accepted the claim raised by a group of Jehovah's Witnesses that the state's mandatory pledge policy infringed upon their religious beliefs, but spoke about a broader right to be free from compelled speech, stating: 

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.

But that wasn't the only pledge problem in 1940s West Virginia.  The stationary hand-over-heart stance we know of today had not yet been adopted.  The common practice instead was to begin the pledge hand-over-heart, moving the arm into an outstretched elevated position as the pledge was recited.  When civic organizations and parents complained that the salute was "too much like Hitler's," the state adopted a "stiff arm salute" which required that "the saluter keep the right hand raised with palm turned up."  Trying to distinguish the Nazi-fascist salute, here's how the National Headquarters of the United States Flag Association at the time described the difference:      

In the Pledge to the Flag the right arm is extended and raised, palm Upward, whereas the Nazis extend the arm practically straight to the front (the finger tips being about even with the eyes), palm Downward, and the Fascists do the same except they raise the arm slightly higher.  James A. Moss, The Flag of the United States: Its History and Symbolism 108 (1914). 

The images above can be accessed here and here.  The top left shows Native American children pledging the flag (whole different issue) in a palm down stance more akin to the Nazi salute.  The bottom right shows contemporary children making the "stiff arm salute," palm up, in a roll playing exercise at a pioneer school in Nebraska. 

-Kathleen A. Bergin

Full post as published by The Faculty Lounge on May 12, 2008 (boomark / email).