Texas Students Allege They Were Punished for Refusing to Stand During Pledge of Allegiance

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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USA FlagSome parents might decide to punish their child for refusing to stand during the pledge of allegiance. Other parents might applaud their child for engaging in an act of conscience. While parents might legitimately make different choices about raising their children, the dynamics are quite different when the government decides to punish a student for expressing a political view in a nonviolent way.

A 17-year-old student in Texas has sued the school district for failing to respect her First Amendment right to make a political statement by sitting during the pledge of allegiance. The lawsuit alleges that M.O., who frequently sat rather than participating in the pledge, was “sent to the office, bullied by classmates and singled out for separate treatment by teachers.”

A sociology teacher allegedly told M.O.’s class that students who refused to recite the pledge would receive a failing grade. She compared those who refused to say the pledge to “Soviet communists, members of the Islamic faith seeking to impose Sharia law, and those who condone pedophilia.”

It is an odd view of patriotism that would punish a child for exercising a constitutionally protected right. Constitutional rights are the foundation of American government. Even if the teacher did not agree with the political viewpoint that her student expressed, the teacher’s attempt to suppress the right to express an unpopular political opinion is shocking.

Patriotism includes support for a country’s ideals. Schools should teach those ideals. A teacher who tries to punish ideas because she disagrees with them is sending an unpatriotic message to students. A teacher should understand that forcing people to participate in political speech with which they disagree is more akin to “Soviet communism” than the American ideals she should be instilling in her students.

Protest and the Pledge

When NFL players made headlines by taking a knee during the national anthem, they were making a political statement. Private citizens have the right to condemn or support that statement, while owners and coaches have the right to respond in any way that does not violate the terms of the players’ collective bargaining agreement.

When schools take action against students for engaging in political speech, however, the situation is quite different. Public schools are government institutions, governed by elected school boards and funded with tax dollars. When schools act, the government acts. Forcing a student to recite the pledge of allegiance, or to show support for the content of the pledge by standing when it is recited, contravenes fundamental principles upon which the nation was founded.

Courts have given schools great leeway to discipline students whose conduct is arguably disruptive, but sitting quietly during the pledge is not a disruptive act. Students and teachers might be offended by the message that sitting during the pledge conveys, but the First Amendment exists to protect political speech that offends others. Inoffensive speech requires no protection. It is only when speech offends that the government tries to silence it.

The Supreme Court’s Barnette Decision

In 1943, the Supreme Court held that Jehovah’s Witnesses could not be expelled or disciplined for refusing to pledge allegiance to the flag. While religious freedom played a role in the Court’s decision, the Court recognized that the right of free speech protects students from being compelled to declare a belief.

The Court condemned nationalism to the extent that it seeks to coerce uniformity of thought. That people feel strongly about the flag does not empower the government to suppress dissenting views. As Justice Jackson wrote:

To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.

And as he said in the decision’s most famous passage:

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.

While that case involved a requirement that students recite the pledge, students were also required to salute the flag. The Court’s condemnation of a forced salute is equally applicable to a school rule that compels children to stand during the pledge of allegiance. If students prefer to protest by sitting during the pledge, that is their constitutional right.

The Texas Cases

The lawsuit by M.O. alleges that the school district retaliated against her for exercising her right to free speech. The school district denies that it acted inappropriately.

A second lawsuit was filed by India Landry, a student in the Cypress-Fairbanks Independent School District. Landry has long refused to stand for the pledge because she does not believe that the United States offers “liberty and justice for all.”

Landry alleges that she was in the principal’s office when the pledge of allegiance was recited over the loudspeaker. The principal told Landry to stand. She refused, continuing a protest in which she had engaged for many months. The principal immediately expelled her.

According to Landry, a school secretary told her to call her parents and said she would be escorted from the school by the police if her parents did not arrive in five minutes. “This is not the NFL,” the secretary said.

The secretary was correct. A school is not the NFL. The NFL is a private employer. A public school is the government, and all of its employees are government employees. The First Amendment places no restrictions on the NFL. It does protect individuals from government employees who try to suppress free speech.

Landry was told that she would not be allowed to return to school until she agreed to stand for the pledge. After several days, a local news station reported the expulsion. The school reversed course the next day and allowed Landry to return. The district has refused to comment on Landry’s lawsuit.

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