“Oh Say Can You See”…that I am taking a knee?

The culture wars always find their way into the public school. Thus it is not surprising that the brouhaha involving the NFL, Donald Trump, the National Anthem and the appropriateness of “taking a knee” or otherwise symbolically expressing an opinion would find its way onto the sideline of the Friday night football game. Can a student football player, wearing the school’s uniform, express his private opinion by “taking a knee” during the playing of the Star Spangled Banner?

We are going to spend all week on this issue (except for Tuesday, which is reserved for The Toolbox).  We do not yet have reported case law about the National Anthem, but we have several important cases about a similar national ritual—the Pledge of Allegiance. Today, we lead off with the granddaddy of all student free speech cases—West Virginia State Board of Education v. Barnette.

That case arose when some students in West Virginia refused to salute the flag during the daily, required Pledge of Allegiance.  The reason for the refusal was religious. The students were Jehovah’s Witnesses. They cited Exodus 20: 4-5 for the notion that they were not to “bow down” or serve any “graven image.”  To them, the flag was a “graven image,” and saluting it would violate God’s commandment.

The Supreme Court ruled that the students could not be forced to salute the flag, and school officials could not punish them for their refusal.  So this case established that students who object to a flag salute based on religion are not required to salute the flag. But the Court made it clear that the decision was based on fundamental First Amendment free speech grounds, not just religion:

Nor does the issue as we see it turn on one’s possession of particular religious views or the sincerity with which they are held. While religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual.

The majority opinion in the case is eloquent. Here are some quotes that resonate in the context of the current controversy:

Symbolism is a primitive but effective way of communicating ideas.

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 man’s jest and scorn.

Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations.

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.

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.

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.

And here is the quote from this case that is most frequently cited:

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.

The case is West Virginia State Board of Education v. Barnette, decided by the U.S. Supreme Court on June 14, 1943.  That’s right—1943. Right in the middle of World War II, when patriotism and national unity were at an all time high.


Tomorrow: Toolbox Tuesday!!