You Can’t Force Public School Students to Salute the Flag (or to Hold Their Hands over Their Hearts)

That’s been well-settled First Amendment law for 70 years, but some government officials are still not on top of it. Three years ago, a judge’s attempt to force people to say the Pledge hit the news; now, it’s a Florida teacher. According to Hernando Today,

An Explorer K8 teacher was suspended [for five days without pay] after trying to force one of her students to say the Pledge of Allegiance, according to an investigation….

After the student informed [teacher Anne Daigle-McDonald] of [his religious objection to saluting,] McDonald went to the front of the class and said, “If you don’t want to say the pledge, you still have to put your hand on your heart and if you don’t want to do that, you should move out of the country,” according to the report.

The report also shows McDonald said something about there not being a religion that prohibits doing the pledge, according to the investigation.

Several other students in the class corroborated the allegations, according to the investigation.

Here, by the way, is a passage from the Court’s 1943 Barnette opinion, striking down a compulsory flag salute (and not just the compulsory pledge); the logic would apply equally to a compulsion to put one’s hand on one’s heart:

There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.

Over a decade ago Chief Justice Hughes led this Court in holding that the display of a red flag as a symbol of opposition by peaceful and legal means to organized government was protected by the free speech guaranties of the Constitution. Stromberg v. California, 283 U.S. 359. Here it is the State that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks. Objection to this form of communication when coerced is an old one, well known to the framers of the Bill of Rights.

Thanks to Robert Dittmer for the pointer.