First Amendment. Students. The Pledge of Allegiance.

I was pleased to be invited to participate in a video project sponsored by the Texas Young Lawyers Association about public schools, students and the First Amendment.    Check it out at: The project includes First Amendment icon Mary Beth Tinker (Tinker v. Des Moines), several students, teachers and administrators and me.  It would be great to share this website with social studies teachers and principals. 

It would be particularly timely to review the right of students to opt out of the recitation of the Pledge of Allegiance.  There is a case pending about this in Texas. Originally, the suit named as defendants the district, the superintendent, two principals, an assistant principal and four teachers.  The court has now dismissed all of these defendants except for one teacher who remains potentially liable.

So let’s review a few basics about this. First, the right of students to refuse to participate in this patriotic exercise is not up to debate.  The court opened its opinion with this:

There is no shortage of lawsuits against school districts and officials alleging constitutional violations against students, parents, or employees.  But it is rare to see a case alleging that a teacher or school district violated a public school student’s First Amendment right not to salute the flag or pledge allegiance to it. Why?  Because the Supreme Court made it clear in 1943, in West Virginia SBOE v. Barnette, that the First Amendment forbids compelling saluting or pledging allegiance to the flag.

Second, in Texas students cannot opt out of this exercise until they provide a written request for an exemption from a parent or guardian. Texas Education Code 25.082.  Some student somewhere in Texas is eventually going to challenge this statute, arguing that the constitutional right belongs to the student, and is not contingent on parent approval.  At this point, however, no court has struck down the statute. 

Third, punishing or harassing a student for exercising a right of free speech is a violation of that right.  So the responses of teachers and administrators to students who choose not to participate in the Pledge are relevant. 

Some of the educators were dismissed from the case because the actions they took were prior to the mother’s request for an exemption for her daughter.  Others were dismissed based on qualified immunity.  But one teacher was left twisting slowly in the wind.  Why?

The court held that there were too many unresolved factual disputes about this teacher to give a summary judgment to either side.  The specific act of the teacher in question was his assignment to the students that they were to write out the words to the Pledge.   The students were to do this while listening to “Born in the USA” by Bruce Springsteen.  The teacher said that he had used this assignment for years in an effort to “teach students that people sometimes recite things every day out of habit and without thinking about what they are actually saying.”  The student/plaintiff refused to do the assignment and there was a factual dispute over the consequence. Did the teacher give her a zero?  Apparently the record on that was not clear.  Key Quote:

Given the factual disputes and the many reasonable inferences the record evidence could support, a reasonable jury could come out either way on whether [the teacher’s] assignment was an impermissible attempt to promote patriotism.

Let’s pause and reflect on those last few words.  Are teachers not supposed to promote patriotism?  Is this not included in the TEKS?  I suspect the judge, if questioned, would acknowledge that teachers have the right, if not the duty to “promote” patriotism.  However, the teacher here is accused of using his authority to compel students to perform an act of patriotism.  That’s what makes the facts murky and subject to different interpretations by different juries.

So the case continues. But in the meantime, let’s try to avoid any such litigation by training teachers and administrators to respect the right of students, with written parent permission, to refuse to participate in the Pledge.  After all, it’s been the law of the land since 1943. 

The case is Oliver v. Klein ISD decided by the Southern District of Texas on March 25, 2020. We found it at 2020 WL 1646825.


Tomorrow: Another “use of force” case.