I recently was asked during question and answer periods at conferences in New Hampshire and Tennessee whether public school students have a First Amendment right to protest by kneeling during the recitation of the Pledge of Allegiance.
Yes, they do, or at least they should. The U.S. Supreme Court declared back on Flag Day in 1943 that public school students did not have to stand, salute the flag, and recite the Pledge of Allegiance in West Virginia Bd. of Educ. v. Barnette (1943).
While the decision involved students refusing to salute the flag for religious reasons, Justice Robert Jackson’s language is quite encompassing and powerful. He wrote:
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.
It is “orthodox” to stand respectfully before the American flag, salute the flag, and recite the words of the Pledge of Allegiance. That is what I and millions other do at various public events. But, the First Amendment’s guarantee of free speech protects the unorthodox, safeguards the “freedom to differ” and it encompasses the right to protest peacefully.
When my friends Mary Beth and John Tinker wore their black armbands to protest U.S. involvement in the Vietnam War years ago, some school officials were offended. But, the U.S. Supreme Court protected their right to engage in passive, political speech. “In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate,” Justice Abe Fortas wrote in Tinker v. Des Moines Independent Community School District (1969). “They may not be confined to the expression of those sentiments that are officially approved.”
Sadly, some student-athletes have been punished or threatened with punishment for engaging in passive political speech about one of the most important issues of modern time – racial disparities in the criminal justice system.
The First Amendment protects their right to engage in passive, peaceful protest.
David L. Hudson, Jr., the Ombudsman for the Newseum Institute First Amendment Center, is an author, educator, and public speaker. He is the author of numerous works on school law, including Let The Students Speak!: A History of the Fight for Free Expression in American Schools.