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If we are going to have national standards in education

by: teacherken

Wed Feb 24, 2010 at 06:11:42 AM EST

then something that should be included, for teachers and administrators, as well as students, are these words:

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.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

They were written by Robert Jackson, as part of the opinion of the Court, in the 1943 (note the date) case of WEST VIRGINIA STATE BOARD OF EDUCATION ET AL. v. BARNETTE ET AL., 319 U.S. 624.   And recent events in a school in the DC suburb makes it clear why everyone should know about this case.

teacherken :: If we are going to have national standards in education
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.

Jackson continues:  

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.
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Montgomery Cnty MD has a policy that if followed
would have meant the teacher would not have taken the action of removing the child from the classroom, and the student would not have been subjected to ridicule.

I can think of many districts in the Old Dominion that would lack such a policy, and in which a teacher might well be subjected to discipline if s/he did not make students stand.

Heck, even in my own school I have had discussions with Social Studies teachers - who should know better - about this.  The understanding is simply lacking.

We cannot afford to have understanding of basic rights lacking, or those basic rights begin to lose meaning.

This is my world and welcome to it

Some Students More Aware Than Some Teachers
Before I retired from teaching English in Botetourt County (not exactly a liberal part of the state), a few students became aware of the fact that the county policy of having everyone stand and say the Pledge at the start of 1st period was not constitutional.

A few of them decided to sit quietly and dare anyone to try to make them stand or repeat the Pledge. I know of no one who was punished or ridiculed.

Some of the other students thought the "rebellion" was funny. After a few days the "protest" faded away.

The "protesting" students had listened carefully in their government classes. They had learned that the Barnette case had protected the freedoms of Americans, even in a time of war.

It's too bad that there are ignorant people today who would sell their freedoms for a bowl of patriotic porridge.

[ Parent ]
In addition to enforcing uniformity
there is an institutionally-sanctioned effort to manipulate people who are atheists to swear allegiance to one nation "under God."  I'm not an atheist, but that's pretty disrespectful, not to mention coercive, to try to force everyone to do this.  And this doesn't begin to address what should be the separation of church and state. Of course, those who would coerce have read a parallel and revisionist history of the founding fathers, so it's difficult to get through to them on the separation of church and state.

Another thing the pledge does is force minorities to say "with liberty and justice for all," when, from their experience, there is and has been only liberty and justice for some.  That's disrespectful as well.  The truth is that "for all" is the ideal, but we fall far short in reality.  But minorities should not be coerced into saying, in effect, all is well.

The bottom line, though, is that making everyone pledge mandatory shows an extreme lack of confidence.  Maybe those trying to extract forced pledges should take a look at what they do and whether they live up to the country and the Constitution. Maybe the coercive ones are the problem.  

"One person, one vote" died at the hands of SCOTUS, January 21, 2010

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