|The case occurred in a middle school in Montgomery County Maryland. You can read the Washington Post story about it. What happened was in violation of school system rules and procedures. It was also a clear violation of the rights of the student, rights clear expressed in the Barnette case from which I have quoted.
From the ending of the Post story:
The incident began on a Wednesday in late January, when the girl did not stand for the pledge. Her teacher yelled at her, demanded that she stand and then sent her to the office for her defiance, Quereshi said. The school system confirmed the sequence of events.
The next morning, the girl again refused to stand for the pledge. This time, the teacher called two school police officers to the classroom to escort the girl to the office.
Also from the Post story:
The unidentified student was mocked by other children in her class and has been too traumatized to return to Roberto Clemente Middle School in Germantown where the incident occurred.
I have written about the Barnette case on multiple occasions. I find that many teachers and administrators are totally unaware of it. They may realize that they cannot make students recite the Pledge, but believe that can make the student stand. They cannot.
Here's what's worse in my mind. As I was heading to DC from school this afternoon, the incident was the focus of the talk-back line at all-news station WTOP. And what the stations' report was that the response to the story was overwhelmingly that the teacher was right. Some of the clips played had people saying that they didn't care what the Court had ruled or what the law was, that if people didn't want to stand for - and in some case if they would not recite- the Pledge of Allegiance they should leave the country.
I am a natural born citizen over the age of 35 who has lived in the United States all of his life. Constitutionally I am eligible to be President, and I am older than the three most recent occupants of that position. The Pledge is not mentioned in the Constitution, nor is its recitation required as a condition of becoming an American citizen, although most will recite it upon receiving their US citizenship.
It was written as a one-time exercise for the 1892 Columbian Exposition in Chicago, and was originally phrased "I pledge allegiance to the flag of my country" - it did not even mention the name of the nation.
That so many - educators, ordinary folks, and - unfortunately - those holding public office, on school boards, in state legislatures, and in the United States Congress, do not realize that participation in patriotic ceremonies of any kind cannot be compelled says to me that we have failed miserably to properly educate people in the meaning of the Constitution and the Bill of Rights.
Robert Jackson's opinion should be part of the mandatory learning of all Americans. I know of few written expressions come close to making clear the meaning of the protections of the Bill of Rights as does this opinion.
Let me offer some more.
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.
Yes we want national unity. Remember that Jackson wrote this opinion - supported by 6 of the 9 Justices on the Court (and shame on the other 3), in the middle of World War II. Can we in fact compel national unity?
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.
Look again, carefully at that last sentence: Compulsory unification of opinion achieves only the unanimity of the graveyard. Perhaps not even when we are dead will will all agree, all we can say is that in the graveyard no one can any longer disagree? Perhaps, although I am here reminded of the epitaph on the gravestone of Loenard Matlovich, in Congressional Cemetary in DC, in which after the words "NEVER AGAIN" and "A GAY VIETNAM VETERAN" we read WHEN I WAS IN THE MILITARY THEY GAVE ME A MEDAL FOR KILLING TWO MEN AND A DISCHARGE FOR LOVING ONE. So perhaps, Robert Jackson was wrong, that even in the grave yard we will not have unanimity.
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. I have sometimes quarreled with the final sentence of what I have just quoted, for in fact there are some things beyond the reach even of public opinion: after all, one purpose of the Bill of Rights is to protect minorities - of opinion, of religion - from the tyranny of the majority. Even so, this paragraph contains some key ideas:
The First Amendment was designed to avoid these ends by avoiding these beginnings - we do not even start down the path of compulsion of belief or of expression
Our government is set up by the consent of the governed - We the people - and the Bill of Rights denies those in power any legal opportunity to coerce that consent - I note that unlike some nations there is no penalty in this nation for failing to register and vote (except that one thereby loses some moral authority to complain about the resulting government).
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. This next sentence is key - those who insist that we must compel participation in patriotic ceremonies really lack confidence in America and Americans. Jackson is too kind when he calls that lack of confidence "an unflattering estimate" - it is a total lack of faith.
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. - Eccentricity? Protected by the First Amendment. Abnormal attitudes? Protected by the First Amendment.
When they are so harmless to others or to the State as those we deal with here, the price is not too great. Read that again. Jackson is saying that the refusal of school students to participate in the Pledge ceremonry is "harmless to other or to the State" - and if it was so clearly harmless in the midst of WWII, perhaps those like the offending teacher at Roberto Clemente Middle School need to step back and look at themselves.
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. This is key. The protections of the Bill of Rights - all of them - apply most importantly in the most difficult situations. The protections against self-incrimination in the Fifth Amendment apply just as fully to the obviously guilty as to the clearly falsely charged. Our freedom of speech is not limited to insignificant expression, but applies most crucially when we criticize the government and the nation, even in the time of war, even if it is about our participation in or our conduct of that war. Former Senator Charles Robb, himself a decorated Vietnam veteran, spoke to this in the midst of a debate over one of the periodic attempts to amend the Constitution to "protect" the flag. He said that one of the things for which he was fighting was the right to burn the American flag in protest, that was something that was different about America. My recollection of his words is imperfect after several decades. And I would disagree about that as a justification for our involvement in Vietnam. Yet having served, albeit stateside, during the conflict, I can attest to this: that for the average person fighting such was a part of the motivation, the belief that one was fighting for American values, one key part of which is the freedom to disagree with one's government.
I have already quoted the most famous lines from this opinion. I am of a generation that was still required to memorize important expression from things like the Declaration, the Preamble, the Gettysburg Address. We also learned expressions of elected leaders - such as having nothing to fear but fear itself - and of military figures - You may fire when ready, Gridley; Damn the torpedoes, full speed ahead; I regret that I have but one life to give to my country.
Nowadays some young people will learn words like "I have a dream" although unfortunately too often ripped from the more complete context in which King spoke them.
I have always felt that there were two other expressions I wish that all our children would learn. The earlier of these were spoken at the Battle of Fredericksburg, at Marye's Heights, when the Union assault had been beaten back, those soldiers suffering horrible casualties. Robert E. Lee is reported to have said this:
It is well that war is so terrible -- lest we should grow too fond of it. We should never be casual about war, for by its very nature death and destruction will be a portion thereof.
And the other? Perhaps as famous as any lines from any opinion the Court has ever issued. I began with them, I believe all should know them, and I can think of no better way to end this essay:
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.