Legal Commentary

Commentators have been talking about four middle-school students in Minnesota who were suspended for not standing during the Pledge of Allegiance. District policy requires students to stand, although they need not recite the Pledge. The local ACLU sent a letter to the district and over the weekend the suspensions were lifted and the students' records cleared. Good to see the District came to its senses, although it is a shame it took the ACLU, the threat of a lawsuit, and some bad publicity to get it to do so.

Calvin Massey, writing at the Faculty Lounge, suggests that the case is troubling, although not as clear-cut as the ACLU suggests. I would suggest that it at least should be that clear-cut.

The students engaged in what I have described as symbolic counter-speech: Brandeisian counter-speech responding to a symbol, using the symbol and its surrounding details as the vehicle for that counter-speech. One common mode of symbolic counter-speech is nonparticipation in a symbolic activity, such as the ceremonies or rituals designed to honor or affirm that symbol.

Nonparticipation can be understood in two ways. First, it is a protected refusal to engage in expression aganst your wishes. Under West Virginia State Board of Educ v. Barnette, the First Amendment protects unwilling students from being compelled to salute the flag and recite the Pledge. Importantly, however, the symbolic celebration of the flag (to which Barnette provides protection from compulsion) resides the entire ceremony--everything from standing, to facing the flag, to placement of a hand over the heart, to the recitation of some or all of the words. Thus, to have any force, the liberty not to be compelled to participate must apply to every part of that symbolic celebratory ceremony.

But nonparticipation itself is expressive; the act of refusing to join sends a counter-message (silent and non-specific though it might be) about the symbol and its message. An individual's ability to protest a symbol must include the ability to opt-out from everything surrounding that symbol, even something seemingly as innocuous as being made to stand silently.

Massey does raise the spectre of the fact that this occurred in the school setting and the argument that the school has a legitimate pedagogical interest in preventing interference with school business that might come from sitting students fostering a "climate of sullen disrespect." But I do not see how sitting fosters any more of a climate of disrespect than not saluting or remaining silent or omitting certain words. It is a bit more obvious perhaps, but shows the same refusal to engage with the symbol and its surrounding details. I might agree if students engaged in more-disruptive modes of symbolic counter-speech--shouting down the flag, loudly uttering different words (hence the above cartoon), or perhaps even more-dramatic non-participation, such as turning away from the flag (although I would be troubled by the last one). But merely sitting this one out does not cause any sort of disruption in the Tinker sense or even interfere with the school's mission or message in the Morse v. Frederick sense.