This spring, our eighth-grader came home from school with two startling announcements: She and a friend had abstained from the Pledge of Allegiance; and the two faced disciplinary action if they refused to stand or leave the room during this morning ritual.
The ensuing minidrama has played out in hundreds, perhaps thousands, of schools nationwide.
"Students today are still punished for refusing to participate" in the pledge, notes David Hudson, a lawyer at the First Amendment Center. Seven states still have unconstitutional laws on the books requiring students to participate in Pledge of Allegiance exercises. As the school year begins, it's time for a lesson on the disparity between law and practice.
First, the law: Today's standards regarding school recitation of the Pledge of Allegiance date to the 1943 Supreme Court case of Board of Education v. Barnette. Overturning West Virginia's requirement that all teachers and students "shall be required to participate in the salute honoring the Nation represented by the Flag," the court concluded that schools, or other public officials, cannot "force citizens to confess by word or act" to recite the pledge. Penned during the darkest days of World War II, this decision resonates with special meaning.
Yet what about the circumstances of our daughter? Surely a similar case had reached the courts before, we thought. We were right.
In 1973 the US Court of Appeals heard a challenge from a Shaker High School student from Latham, N.Y., who was offered the option of leaving the room or standing silently during the pledge. Like our daughter, the student challenged these choices. The court sided with the student, observing that "the act of standing is itself part of the pledge" that "can no more be required than the pledge itself." Requiring the student to leave the class would, in effect, punish the student for non-participation. The court concluded, "we do not believe that a silent, non-disruptive expression of belief by sitting down may ... be prohibited."
In 2002, Pennsylvania adopted Act 157, requiring public and private schools to provide a daily Pledge of Allegiance or national anthem. While students were not required to recite the pledge, schools would send written notice to parents if their children declined to participate.
Two years later, the US Court of Appeals struck the law down, saying that the parental notification clause "discriminates among students based on the viewpoints they express," and imposed on students "a disincentive to opting out." Students are entitled "to make a choice, without coercion, whether to recite the Pledge or Anthem."
Colorado adopted in 2002 a similar law, providing exemptions only for nonstudents and those with religious objections. Conscience-based objections were not protected. After a federal judge blocked the law, Colorado passed a bill allowing students and teachers to opt out without penalty.
Here in New York, the authoritative legal guide, School Law, notes students' (and teachers') rights to abstain from pledge recitation and remain seated.
Yet my own limited, unscientific survey of local school practices found that teachers, as well as administrators, seemed unaware of, or misinformed about, what the law allowed or required. This gap between law and practice is, I believe, explainable for two reasons.
First, teachers and administrators wish to advance the laudable goal of teaching citizenship and, by extension, patriotic values, through the pledge.
This purpose has become an even greater priority for a second reason: the upsurge in patriotism spawned by the dual wars on terrorism and in Iraq. In the two years following 9/11, 17 states passed laws requiring pledge recitation. Even in cynical New York City, where daily pledge requirements have been largely ignored for 30 years, the Board of Education reimposed the requirement after 9/11. Yet the courts' consistent position to shield students who opt out of the pledge is not only the law, it is wise.
Classroom order is disrupted less by students who sit quietly than by teachers who insist dissenters stand or else troop in and out before and after the pledge. Students know coercion when they see it, and efforts to compel recitation, whether covert or overt, are instantly recognizable, and therefore invite student mockery and disdain, diminishing the value of the act.
In the case of our daughter, school officials readily adjusted their policy after a polite note from us. Yet from Alabama to Seattle, school officials continue to punish students who seek to abstain quietly from the pledge.
The bottom line on student abstention from the pledge is this: It's their right. Patriotism is a noble value, but in America it belongs to the dissenter as much as to its most fervent advocate.
As Justice Robert Jackson wrote in 1943: "To believe that patriotism will not flourish if patriotic ceremonies are voluntary ... is to make an unflattering estimate of the appeal of our institutions to free minds."
• Robert J. Spitzer is distinguished service professor of political science at SUNY Cortland. His latest book is 'The Presidency and the Constitution.'