It’s Not An Election Year

So can someone explain to me the reason for this bill:

[Yesterday, the] Senate Education Committee approved a bill to require public school students to say the Pledge of Allegiance.

Here’s the text of the bill:

(a) The teacher and students in each classroom in each public elementary and secondary school shall begin each school day by reciting aloud the Pledge of Allegiance to the Flag of the United States of America.

“(b) A student shall be exempt from reciting the Pledge of Allegiance if a parent or guardian of the student objects in writing to the recitation of the pledge on any grounds and files the objection with the principal of the school. A teacher shall be exempt from reciting the Pledge of Allegiance if the teacher objects in writing to the recitation and files the objection with the principal of the school. If a teacher is exempted, the principal shall designate another person to initiate the Pledge of Allegiance.

(c) Subsection (a) shall not be construed to require students and teachers who are not United States citizens and are attending or teaching school in the state to recite the Pledge of Allegiance

Requiring an unwilling student to say the pledge is a good way to lose a lot of money in a lawsuit, as it is an unconstitutional infringement on the student’s right to free speech. As recently as 2004, a Walker County, Alabama, school was nailed for penalizing a student who stood silently with his fist raised during the pledge.

Sure, this Bill has an exception for unwilling students, but only “if a parent or guardian of the student objects in writing to the recitation of the pledge on any grounds and files the objection with the principal of the school.” I do not think that exception will save the bill, though. 

Under the bill, the student’s “right” to free speech is entirely dependant on his teachers and his parents. The problem is that an unwilling student cannot just remain silent. The student must first get his parents to 1) agree to let him remain silent; 2) fill out the paperwork; 3) file it with the school. If any of those three things do not happen, than an unwilling student will be saying the pledge. And even if they do happen, until they do, the unwilling student will be saying the pledge. So if it takes mom and dad a few days to write the excuse and bring it to the school, for those few days, the free-minded student will have to bleat like the rest of the sheep.

It really is irresponsible to submit bills like this. Not just because it’s wasting time on something that is almost certainly unenforceable, but because if it passes, some patriotic teacher or administrator in some county without ready access to legal advice is going to think that it is now perfectly O.K. to require students to say the pledge. The law requires it, so they have to do it, right? But the truth is that any school that obeys this law would certainly get sued and probably lose a ton of money. Meanwhile the legislators who led those folks to believe their actions were permissible are completely immune.

(As an aside, and in light of this, I really think that that if the legislature is going to pass blatantly unconstitutional laws, they ought to include a warning that anyone who tries to enforce them will probably end up on the losing side of a federal lawsuit. Or else promise to indemnify anyone who tries to enforce the law.)

So I think the bill is unconstitutional. I think it will cost some unsuspecting school a ton of money. I also think it is just plain stupid. I’ll use the often-quoted but never tired Scotus lines from West Virginia State Board of Education v. Barnette to explain why:

Lastly, and this is the very heart of the Gobitis opinion [a prior case that had upheld mandatory flag salutes], it reasons that “National unity is the basis of national security,” that the authorities have “the right to select appropriate means for its attainment,” and hence reaches the conclusion that such compulsory measures toward “national unity” are constitutional. Id. at 595. Upon the verity of this assumption depends our answer in this case.

National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we 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. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom 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.

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. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

Explore posts in the same categories: Alabama Legislature, Free Speech, Scotus

5 Comments on “It’s Not An Election Year”

  1. Kathy Says:

    And for this they get a 62% pay raise?

  2. wheeler Says:

    maybe they could use some of that money to pay for the lawsuits.

  3. Brian Says:

    Any government that makes pledges compulsory does not rule over a free people.

  4. Kathy Says:

    “Any government that makes pledges compulsory does not rule over a free people.”


  5. kabababrubarta Says:

    Nice design! kabababrubarta

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