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David C. Bloomfield: Students have a constitutional right, but for teachers it's a little more complicated

Leading the pledge can be part of a teacher's job and First Amendment rights are limited while on the clock, he writes

Editor’s Note: David C. Bloomfield is Professor of education leadership, law and policy at Brooklyn College and The CUNY Graduate Center. He is the author of “American Public Education Law, 3rd Edition,” among other works. The opinions expressed in this commentary are his own.

(CNN) —  

After repeated weeks of NFL protests, a number of students across the country are following players’ example, silently linking arms or kneeling during patriotic ceremonies, testing teachers’ tolerance. Students in Bossier Parish, Louisiana, Manatee County, Florida, and Houston have all complained of district opposition to protests.

But students have a well-established constitutional right to do so.

David C. Bloomfield
PHOTO: courtesy of David C. Bloomfield
David C. Bloomfield

In West Virginia v. Barnette (1943) the Supreme Court held that public school students have a First Amendment right to remain silent during the pledge and, by extension, any patriotic rite. Following this edict, many districts echo the New York City Public Schools Student Bill of Rights, clearly stating that students may “decline to participate in the Pledge of Allegiance or stand for the pledge.” (Private schools are generally exempt from any of these requirements, so they can require student participation.)

In addition to Barnette’s clear direction regarding sitting out these ceremonies, silent nondisruptive political protest is constitutionally protected under another student First Amendment case, Tinker v. Des Moines (1969). This means that public school pupils – and those in charter schools, because they’re publicly funded – can usually take a knee. If, however, that action or linking arms demonstrably reduces instructional time or creates physical disruption without according opponents a “heckler’s veto,” school leaders may reasonably limit the activity.

Despite these cases, students are regularly pressured by district officials to stand for the pledge. In Midland, Texas, students were told they had to stand for the pledge until the American Civil Liberties Union got involved. A Detroit-area teacher is under investigation for allegedly snatching a black middle school student out of his chair for failing to stand for the pledge.

Although most of the attention surrounding peaceful protests in public schools has been focused on students, educators, too, might be moved to protest. But reciting, even leading, the pledge is part of the job. For them, the Pledge of Allegiance and singing the National Anthem are daily occurrences. Most states require public schools to conduct a daily pledge as defined by federal law. “The Star-Spangled Banner” is regularly sung at schoolwide events, especially for team sports, where those assembled are expected to stand, hats removed, hands on heart. For these public employees, visible protest is especially fraught because of the special nature of student-teacher relationships set amid parent and community scrutiny.

An Indiana teacher who advised students in 2016 of their right to silent protest was directed by his principal to desist.

Teachers’ ability to protest presents a thornier question. Their First Amendment rights are severely limited while on the clock and engaging in school activities.

But reciting the pledge is special. It is not part of the school curriculum that teachers have to follow, no matter their personal beliefs. It is a solemn, personal oath, and courts have ruled that it is unconstitutional for the state to compel such a false statement of political conscience. While the Supreme Court has not ruled directly on the matter, the 2nd Circuit Court of Appeals decision in Russo v. Central School District No. 1 (1972) is instructive, receiving favor in other circuits. There, the court ruled that a high school teacher’s silence during the pledge is protected by the First Amendment since “to compel a person to speak what is not in his mind offends the very principles of tolerance and understanding which for so long have been the foundation of our great land.”

Still, such actions are not to be taken lightly. Teachers, as role models, have a special responsibility not to appear to favor some students’ point of view over others. Since reciting the pledge or singing the anthem are generally routine, few would ascribe a particular political opinion to teachers who do them. But, as we have seen, nonparticipation, especially when coupled with taking a knee or linking arms, is an affirmative statement of protest or religious objection. Yet in some circumstances, there is no middle ground: Sitting or standing, speech or silence, will necessarily convey belief. In those cases, the teacher has a duty of conscience that the law will support.

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Student and teacher actions in these matters are highly consequential. While explanation is not normally required, it is educationally essential. A modern American class, school or district is a pluralistic community where members need to freely and peaceably interact. For this to occur, educators, parents and students need to know their rights and responsibilities during this teachable moment in the nation’s history.