Flag Salute: Pledge of Allegiance

By Wayne J. Oppito, Esq.

A three judge panel of the United States Ninth Circuit Court of Appeals recently determined that the phrase “under God” in the Pledge of Allegiance violates the First Amendment of the Constitution.  However, the decision was reversed by the entire panel of Ninth Circuit Judges on a legal technicality under California law which holds that only the custodial parent may file a lawsuit on behalf of his/her child.  The Court determined that the non-custodial parent who filed the lawsuit on behalf of the minor child had no legal standing to do so.

The Seventh Circuit in 1992 reached a different result.  The Seventh Circuit determined that a student could not be compelled to recite the Pledge.  However, the phrase, “under God” did not violate the Constitution.  New Jersey is in the Third Circuit and is not bound by decisions in other circuits.  Pending a resolution of this issue by a Court with jurisdiction in New Jersey, the following cases are applicable to the state.  Be mindful that Congress added the phrase “under God” to the Pledge in 1954.

New Jersey Statute

N.J.S.A. 18A:36-3 (Display of and salute to flag; pledge of allegiance states):

Each board of education shall require the pupils in each school in the district on every school day to salute the United States flag and repeat the following pledge of allegiance to the flag:

“I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.”  The salute and pledge of allegiance shall be rendered with the right hand over the heart, except those pupils who have conscientious scruples against such pledge or salute, or are children of accredited representatives of foreign governments to whom the United States government extends diplomatic immunity, shall not be required to render such salute and pledge but shall be required to show full respect to the flag while the pledge is being given merely by standing at attention, the boys removing the headdress.

Hering v. State Board of Education

Court decisions involving the interpretation of the flag salute statute have changed dramatically over the decades.  In a 1937 case, the New Jersey Supreme Court in Hering v. State Board of Education, dealt with similar statutory language.  Two children, ages five and seven, were expelled from school because they refused to salute the flag and recite the Pledge of Allegiance.  The claim before the court was that the statute was invalid because it infringed upon the two students’ religious freedom.  The court rejected the claim, holding:

Those who resort to educational institutions maintained with the State’s money are subject to the commands of the State… The performance of the command of the Statute in question could, in no sense, interfere with religious freedom.  It is little enough to expect of those who seek the benefit of the education offered in the Public Schools of this State that they pledge allegiance to the Nation and the Nation’s flag.  The Pledge of Allegiance is, by no stretch of the imagination, a religious right.  It is a patriotic ceremony which the legislature has the power to require of those attending schools established at public expense.  A child of school age is not required to attend the institutions maintained by the public.  Those who do not desire to conform with the commands of the statute can seek their schooling elsewhere.

Based on this reasoning the Court affirmed the students’ expulsion.  Remember in 1937, the phrase “under God” was not included in the Pledge.

In re Latrecchia

The same court, in a 1942 case, already appeared to retreat from the harsh result contained in the Hering case.  In In re Latrecchia, two children, ages 13 and 14, who were Jehovah’s Witnesses, were expelled from school because they would not salute the American flag.  Subsequently, their parents were convicted of a disorderly persons offense because their children were not in regular attendance at school.  The children were expelled and then the parents were found to be in violation of the compulsory education statute for children because their children were not attending school.  The court overturned the disorderly persons conviction of the parents because the reason the children were not attending school was because of the school’s decision to expel them – not because of anything that their parents did.

With respect to the flag salute issue itself, the court cautioned that while the State was within its right to compel those who attend public schools to salute the flag, we should nonetheless be mindful that a salute of the flag is a gesture of love and respect.  The flag is not dishonored by a child who is caught between obedience to a command by secular authority which clashes with the dictates of conscience.  The court concluded its decision by stating that liberty of conscience is not subject to uncontrolled administrative action.

West Virginia v. Barnette

In 1943, the United States Supreme Court issued a landmark decision in West Virginia v. Barnette.  In Barnette, the Supreme Court ruled that a requirement by a State Board of Education or a local Board of Education that all pupils salute the flag is unconstitutional.  The Court opined:

“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.”  The Court added, “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.”

Holden v. Elizabeth Board of Ed

In Holden v. Elizabeth Board of Ed., a 1966 case, petitioners were a group of elementary age students who were suspended from school because they refused to salute the flag and repeat the Pledge of Allegiance.  They claimed that, as Muslims, they were taught that it would be contrary to the teaching of Islam to pledge allegiance to any flag, whether the flag of Islam or the flag of the United States.  The Elizabeth Board of Education argued that the exception in the statute for conscientious scruples was not intended to be so broadly construed as to include petitioners’ religious beliefs.  The Board claimed that the childrens’ action were as much politically, as religiously, motivated.

Echoing the decision in Latrecchia, the court found that the action of the Elizabeth Board of Education violated the students’ constitutional rights.  Adopting in its entirety the decision of the Commissioner of Education, the Court said:

Neither our domestic tranquility in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing from them but a fear of spiritual condemnation.  If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors.  The ceremony, when enforced against conscientious objectors, more likely to defeat then to serve its high purpose, is a handy implement for disguised religious persecution.  As such it is inconsistent with our Constitution’s plan and purpose.

In a unanimous decision, the court found that compelling the children to salute the flag or recite the Pledge of Allegiance violated their First Amendment rights.

Lipp v. Morris

The current interpretation of the law as it relates to the flag salute in the Third Circuit was set forth in 1978 in Lipp v. Morris.  Plaintiff, a 16 year old student, contended that the statutory requirement that she stand during the recitation of the Pledge of Allegiance violated her constitutional rights because it compelled her to make what she termed a symbolic gesture.  Referring to West Virginia Board of Education v. Barnette, plaintiff argued that her right to remain silent and not to be forced to stand was protected by the First Amendment.  The court agreed.  In Lipp, the court said that any requirement that she stand at respectful attention while the flag salute was being administered and participated in by other students was an unconstitutional requirement that the student engage in a form of speech and therefore could not be enforced.

The court did not find it necessary to declare the entire statute, N.J.S.A. 18A:36-3, unconstitutional.  Instead, it determined that only that portion of the statute requiring a student to either stand at attention during the flag salute or to require the recitation of the Pledge of Allegiance is an unconstitutional infringement of freedom of speech and expression.  As a result of Lipp, boards of education and administrators may not require students to salute the flag, recite the Pledge of Allegiance or be required to stand during the Pledge of Allegiance, if the student has a religious, moral or conscientious reason not to do so.

This does not mean that a student may decline because he/she does not “feel like standing.”  If a student declines to stand, an administrator is within his/her right to inquire as to why.  The reason must be for religious, moral, conscientious or other constitutional grounds.  If the student is under 18 years old, the administrator may discuss the matter with the student’s parent.  However, be mindful that it is the student’s constitutional right and not the parents’.  It is worth repeating that “I don’t feel like it” or “I’m too tired” are not constitutional reasons.  However, if the administrator ascertains that the student does have constitutional reasons for not standing or participating in the Flag Salute, the student is permitted to sit quietly and not be disruptive.