Mini-Kaepernicks Sit Out the Pledge of Allegiance—but Not All Teachers Know the Law

Saying the Pledge in schools has long been intertwined with civil liberties and religious or ethnic minorities. But in some cases, students’ rights to sit while it’s recited is still up in the air.

© Kevin Lamarque / Reuters

In the wake of Colin Kaepernick’s headline-grabbing refusal to stand for the national anthem, some young people have been following the star quarterback’s lead.

In Chicago, for example, a 15-year-old high school sophomore refused to stand for the Pledge of Allegiance, saying “America sucks” and “doesn’t support black people.” According to the child and his mother, his teacher tried to force him out of his chair. That investigation is ongoing.

There has been a long history of youthful political dissenters refusing to say the Pledge of Allegiance, to stand for it, or—as was formerly the practice—to salute the flag as they said it.

One of the most important Supreme Court cases on religious liberty, for example, was the 1943 case of West Virginia State Board of Education v. Barnette, in which a family of Jehovah’s Witnesses sought to have their children exempted from having to say the Pledge, which, they said, violated their religion. By a vote of 6-3, the court ruled in favor of the Barnettes, but on free-speech grounds. Saluting the flag, the court said, was a form of political speech, and as such, was protected by the First Amendment.

Less well-known is the background to that case. Just three years earlier, the court had said children could be compelled to stand and salute the flag because the requirement was a secular rule, designed to promote patriotism. But in the wake of that decision, anti-Witness riots broke out across the country, as the Witnesses were deemed anti-patriotic. (Not coincidentally, many Jehovah’s Witnesses were also German.) A church was burned down in Maine, Witnesses were tarred and feathered in Wyoming, and all in all, over 1,500 Witnesses were attacked nationwide.

It was in that context that the court, with two new members and three justices formally renouncing their earlier votes, reversed itself in 1943. That context now seems eerily familiar: a despised religious minority, accused of a lack of patriotism, targeted with violence in the wake of a public pronouncement.

But because Barnette was decided on free-speech grounds, it set a precedent for dissent by students and adults right up until the present day. Just this week, President Obama said Kaepernick is “exercising his constitutional right” by refusing to stand for the national anthem. And echoing the Supreme Court’s decision that standing, saluting, and saying the Pledge of Allegiance are forms of political speech, Obama added that “if nothing else, what he's doing has generated more conversation around some topics that need to be talked about."

While the Supreme Court did not specifically address whether students may be compelled to stand (as opposed to salute and recite), several appeals courts have said they may not be.

There’s a difference, though, between the constitutional law on the books and how it’s put into practice.

Last year, for example, one California high-schooler said he was “bullied into standing” by a teacher, while in a separate incident, a teacher told a California middle-schooler he had to stand, only to be overruled by the school superintendent. Such actions can be costly; back in 2006, a Florida school district was forced to pay $32,500 to a student who chose not to say the Pledge and was ridiculed by teacher.

In addition, many school districts require parental consent if students wish to opt out of the Pledge, a practice that has been upheld by courts because of the wide latitude given to parents regarding the education of their children.

On the other hand, in the wake of Kaepernick’s actions, some teachers have been encouraging their students to sit. One fifth-grade teacher tweeted that six of his students “took a knee” during the Pledge and tweeted to the quarterback, “u r inspiring kids. Salute.” (The tweet has since been deleted.)

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In these and many other similar cases, the Pledge of Allegiance starts to look a lot like school prayers and “moments of silence.” The law may say one thing, but the cultural factors at a particular school may say something else.

Then again, the question of standing for the Pledge—as opposed to saying it or saluting the flag—is technically an open one. And it’s not hard to imagine a more conservative Supreme Court distinguishing between saying the Pledge on the one hand and merely standing for the Pledge on the other.

Students—just like soldiers and prisoners—have a much more restricted set of rights than people in the general population. Their lockers can be searched, their political speech can be regulated (and banned if it is “disruptive”), and their student newspapers can be censored. It’s not difficult to imagine a court holding that failure to stand for the Pledge is “disruptive” and merely standing up isn’t the same as saying the Pledge itself.

That’s especially easy to imagine if Donald Trump’s nominees, including one judge who believes there’s no need for a “right to remain silent” warning, shape the court in the years to come. That future case wouldn’t affect adults like Kaepernick, but it could well restrict the right of his young followers across the country.

Saying the pledge of allegiance is a symbolic act, which is precisely why it is so intertwined with questions of civil liberties, civil rights, and the rights of minorities to dissent. And as much as in 1943, it is at the center of our current political debates. To Kaepernick’s detractors, he is dishonoring our nation by refusing to stand up for the anthem. But to his supporters, precisely by dissenting from the majority and expressing a strongly-held political view, Kaepernick is honoring what makes America great: our values of freedom and liberty.

So, it seems, are increasing numbers of young people inspired by his example.