Officials at Victory Preparatory Academy (VPA), a charter school in Colorado, need to read the First Amendment and recognize that students retain free-speech rights at school. Fortunately, a recent federal district court recognized in Flores v. Victory Preparatory Academy that students retain such rights and refused to dismiss their lawsuit.
The dispute in question arose in September 2017, when the school held an assembly in the gym. During assemblies, students are expected to stand, salute the flag and recite the school pledge. Several students sat down and did not recite the school pledge. The students were concerned about the overly authoritarian atmosphere and rigid discipline at the school.
The school’s chief executive officer, Ron Jajdelski, then ordered the protesting students back to the gymnasium. He became frustrated and sent the entire student body home.
Officials expelled one student, known in court papers as V.S., for talking about the protest on Facebook and for sharing a post by another student that “Defendant Jajdelski could suck the student’s left nut.” They expelled another student for posting messages about the protest and encouraging other students to participate. Then, school officials banned Mary and Joel Flores, parents of a student at the school, for filming part of the protest at school.
These individuals and others sued the school officials, advancing a number of valid First Amendment claims. First, students have a First Amendment right not to recite the school pledge as a form of peaceful protest.
After all, the U.S. Supreme Court famously recognized that students had a First Amendment right not to salute the flag and recite the Pledge of Allegiance in West Virginia Board of Education v. Barnette (1943). Writing for the court, Justice Robert Jackson warned “that they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, lest we strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”
Furthermore, the Supreme Court famously protected students’ black armband protests in Tinker v. Des Moines Independent Community School District (1969), emphasizing the silent passive political speech of the students.
The school officials filed a motion to dismiss this claim, arguing that the recitation of the school pledge was a form of school-sponsored speech and subject to a more deferential standard for school officials from Hazelwood School District v. Kuhlmeier (1988) — that school officials can censor student speech if it is related to reasonable educational purposes.
Fortunately, Raymond P. Moore, judge for the U.S. District Court of Colorado, recognized the fallacy of his argument. “Refusing to stand and recite the school pledge is an archetypal example of a ‘silent, passive expression of opinion’ that is protected under Tinker,” he wrote.
The judge also denied Jajdelski qualified immunity — a doctrine that often shields government officials from liability unless they violate clearly established constitutional law. Here, Jajdelski violated clear constitutional law, punishing students for refusing to recite a pledge. That is the essence of unconstitutionally compelling speech in violation of the First Amendment.
Judge Moore also found that the parents who were banned from campus stated a plausible retaliation claim. He noted “it was beyond dispute that plaintiffs Mary and Joel Flores had a clearly established right to publicly criticize VPA without facing retaliation.”
David L. Hudson Jr. is a First Amendment fellow at the Freedom Forum Institute and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).