Written by Jessica Lewis, Staff Attorney with the ACLU of Massachusetts

February 24, 2019 is the 50th anniversary of the landmark case Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), in which the U.S. Supreme Court upheld the First Amendment rights of students to engage in political protest and expression in public schools. The Court in Tinker ruled that student Mary Beth Tinker and others could not be disciplined for wearing black armbands to protest the Vietnam War. The Court held that student speech in schools is protected as long as it does not materially and substantially disrupt the work or discipline of the school.[1]

To mark this anniversary, the ACLU of Massachusetts updates this advisory to remind students, the public, and school officials that public school students, including students in charter schools, may not be compelled to recite the pledge of allegiance or to stand during the pledge or national anthem.

In the seminal case from 1943, West Virginia State Board of Education v. Barnette,[2] the U.S. Supreme Court ruled that a compulsory flag salute would violate students’ right to freedom of expression. Lowers courts have since recognized that this right protects students who engage in silent protest or express dissent during the recitation of the pledge or during other patriotic ceremonies. Courts have held that students may express themselves by remaining seated,[3] raising their fist,[4] and kneeling.[5]

In Barnette, the Court wrote:

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.[6]

“The Constitution guarantees students (and all people) the right to engage [in] ‘expressive conduct.[7] Sitting during the pledge or visibly expressing dissent is expressive conduct.[8] In a case in which a student was suspended for failing to stand during the pledge as “protest against black repression in the United States,” the court held that “refusing to stand during the pledge ceremony constituted an expression of [the student’s] religious beliefs and political opinions. His refusal to stand was no less a form of expression than the wearing of the black armband was to Mary Beth Tinker.”[9]

Schools may not abridge the right of students to freedom of expression, including their right not to participate in or to dissent during ceremonies of patriotic or nationalist expression.[10] One way school personnel abridge this right is by reprimanding a student’s choice not to participate in the pledge ceremony. “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.”[11] “Verbal censure is a form of punishment, albeit a mild one,” because the intent behind this act is to dissuade the student from exercising a constitutional right.[12]

Disagreement with the political message – be it perceived as “anti-police” or a demand for racial equality – cannot justify or excuse the abridgement of speech. Rather, “the school must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint” to justify a prohibition of a particular expression of opinion.[13]

In Spence v. Washington, the Supreme Court rejected the argument that speech may be suppressed to protect a purported interest in preserving the American flag as an unalloyed symbol of the nation. A speaker may not be punished “for failing to show proper respect for our national emblem.” [14]

And “[t]hough schools may regulate students’ speech in some limited circumstances, public school students . . . ‘cannot be punished merely for expressing their personal views on the school premises—whether ‘in the cafeteria, or on the playing field, or on the campus during the authorized hours.’”[15]

As the Supreme Court reasoned in Barnette:

[W]e apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. 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. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.[16]

“The schoolroom prepares children for citizenship, and the proper exercise of the First Amendment is a hallmark of citizenship in our country.”[17]

As the Court in Tinker reminded us: “state-operated schools may not be enclaves of totalitarianism.”[18]

Happy birthday, Tinker!


[1] 393 U.S. at 513. “To support the regulation of student speech under Tinker, school officials must produce some evidence that a restriction ‘is necessary to avoid material or substantial interference with schoolwork or discipline.’” Bowler v. Town of Hudson, 514 F. Supp. 2d 168, 178 (D. Mass. 2007) (original emphasis). “The risk that student counseling may be required, or the likelihood of unplanned classroom discussions, does not rise to the level of a substantial and material disruption comprehended by Tinker.” Id.

[2] 319 U.S. 624 (1943).

[3] Banks v. Bd. of Public Instr., 314 F. Supp. 285 (S.D.Fla.1970), vacated on procedural grounds by 401 U.S. 988, 91 S.Ct. 1223, 28 L.Ed.2d 526 (1971), reinstated without published opinion by dist. ct. and aff'd, 450 F.2d 1103 (5th Cir.1971)

[4] Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2008).

[5] V.A. v. San Pasqual Valley Unified Sch. Dist., No. 17-CV-02471-BAS-AGS, 2017 WL 6541447 (S.D. Cal. Dec. 21, 2017).

[6] 319 U.S. at 642.

[7] Harland, 370 F.3d at 1270.

[8] Banks, 314 F.Supp. at 295.

[9] Id. (referring to Tinker, 393 U.S. 503).

[10] See M.G.L., c. 71, § 82; see also Pyle v. Sch. Comm., 667 N.E.2d 869, 872 (Mass. 1996) (interpreting Massachusetts law as protecting the rights of the students to free expression).

[11] Rabideau v. Beekmantown Cent. Sch. Dist., 89 F. Supp. 2d 263, 267 (N.D.N.Y. 2000).

[12] Harland, 370 F.3d at 1268–69.

[13] See Tinker, 393 U.S. at 509.

[14] 418 U.S. 405, 410-11, 412-13 (1974)

[15] V.A., 2017 WL 6541447, at *4 (citing Tinker, 393 U.S. at 506).

[16] 319 U.S. at 637.

[17] V.A., 2017 WL 6541447, at *5 (quoting Chandler v. McMinnville Sch. Dist., 978 F.2d 524, 527 (9th Cir. 1992).

[18] 393 U.S. at 511.

 

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