The American Civil Liberties Union of Missouri is investigating the policy of requiring students to recite the Pledge of Allegiance and/or to stand while the Pledge of Allegiance is recited. Based on the information available to us, the district’s policy violates students’ First Amendment rights. We are writing to encourage you to take immediate corrective action to address this unlawful requirement and to prevent further infringement on students’ rights.
Throughout history, students have chosen to sit during the pledge of allegiance and/or not recite the pledge either because it violates their own religious principles or in peaceful protest against injustice. Students around the country have also recently been refusing to stand, taking a knee, or raising a fist in the air during the national anthem as a way to speak out peacefully against racial injustice.
The ACLU supports students in both their activism and their messages of freedom and equality. We believe that any action by public schools requiring students to stand, place their hand over their heart, recite the pledge of allegiance, sing the national anthem, or subsequently punish them for exercising their constitutional rights and refusing to do these acts is antithetical to our American values, and violates students’ clearly established First Amendment free speech rights.
More than 70 years ago, the Supreme Court held that the First Amendment bars public schools from requiring students to participate in patriotic ceremonies—in that case, saluting the American flag during the pledge of allegiance. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Schools have no valid interest in turning their students into mouthpieces for the government against their will. And students’ refusal to participate in patriotic ceremonies “does not interfere with or deny rights of others to do so,” or otherwise “bring them into collision with rights asserted by any other individual.” Id. at 630. Even in the midst of World War II, the Court admonished school administrators that their job is to train students for participation in our free society, not “to strangle the free mind at its source.” Id. at 637.
Barnette recognized that public schools cannot enforce uniformity of thought “by word or act,” id. at 642, and courts have consistently held that this includes not only the right to be silent during the pledge of allegiance or national anthem, but also the right not to stand. See, e.g., Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1274, 1277–82 (11th Cir. 2004) (holding that school officials are not entitled to qualified immunity when they violate a student’s “clearly established” right to “expressive conduct” by punishing him for remaining seated and silent during the pledge); Lipp v. Morris, 579 F.2d 834, 835 (3d Cir. 1978) (per curiam) (holding that requiring students to stand during the pledge is unconstitutional compulsion); Goetz v. Ansell, 477 F.2d 636, 638 (2d Cir. 1973) (holding that standing for the pledge “can no more be required than the Pledge itself”); Rabideau v. Beekmantown Cent. Sch. Dist., 89 F. Supp. 2d 263, 267 (N.D.N.Y. 2000) (“It is well established that a school may not require its students to stand for or recite the Pledge of Allegiance or punish any student for his/her failure to do so.”); Banks v. Bd. of Pub. Instruction of Dade Cty., 314 F. Supp. 285, 294–96 (S.D. Fla.1970) (holding that requiring students to stand during the pledge is unconstitutional), aff’d, 450 F.2d 1103 (5th Cir. 1971); Sheldon v. Fannin, 221 F. Supp. 766, 775 (D. Ariz. 1963) (holding that student may not be disciplined for choosing not to stand during the national anthem).
This principle holds no less true today than during World War II, and no less true on the playing field or in the classroom. As the Supreme Court held in the seminal Tinker case,a student’s free speech rights “do not embrace merely the classroom hours” but apply equally when “he is in the cafeteria, or on the playing field, or on the campus during the authorized hours.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512–13 (1969).
In addition to a long history of court decisions supporting a student’s First Amendment right to refuse to recite the pledge of allegiance or sit during its recitation at school, requiring a student to recite the pledge is also a violation of state statute as Missouri law specifically states that, “[n]o student shall be required to recite the Pledge of Allegiance.” RSMo. § 171.021.2.
Please consider this letter as an effort to resolve this matter amiably. Please notify us no later than the close of business on Monday, November 20, 2017, that no school official or anyone providing direction to students will require them to stand during the Pledge of Allegiance, recite the Pledge of Allegiance, place their hand over their heart during the Pledge of Allegiance or national anthem, or stand during the national anthem. Absent any action by the school district, after Nov. 20, we will advise the students and their families who have reached out to our office of their options, including seeking a court order requiring compliance with the law.
Thank you for giving this matter your immediate attention.