Students v. The Pledge of Allegiance: Increased Nationalism in American Public Schools

The practice of students calling upon their First Amendment right to free speech when attempting to protest on school grounds has a long history in the United States. One of the most widely known cases of this premise is Tinker v. Des Moines (1969), when several students faced school suspension due to wearing armbands in protest of the Vietnam War—and subsequently filed a lawsuit against their school district. In this case, the Supreme Court ruled in a 7-2 majority that the school’s punishment of the students violated their First Amendment rights on the grounds that, “...the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property.”[1] While this decision made it clear that students retain their rights of expression even on school grounds, a recent development in Texas following the expulsion of a student after she refused to stand for the Pledge of Allegiance demonstrates the growing gray area surrounding students’ rights to freedom of expression.

On the morning of October 2nd, 2017, high school senior India Landry was in her principal’s office when the announcement for the pledge came over the loudspeaker. Both the principal and a secretary in the room stood up for the pledge, but when Landry refused to participate, her principal allegedly told her, “Well, you’re kicked out of here,” and proceeded to expel her. This was not the first time that India had refused to stand for the pledge: she had done this over 200 times over the course of her later years in high school.[2] The school’s principal ultimately reversed the expulsion and allowed Landry to come back, but the Landry family nevertheless filed a lawsuit: Landry v. Cypress Fairbanks ISD et al (2017). While this case has yet to be heard by the court, contradictory precedent surrounding similar issues gives this ruling the opportunity to reveal the state of free expression in an increasingly nationalist country.

A pivotal ruling regarding the pledge of allegiance in schools came with the Supreme Court case West Virginia State Board of Education v. Barnette (1942). This case involved Jehovah Witness students being sent home from school after refusing to recite the pledge of allegiance as per school district policy. The students objected to this on the grounds that their religious faith did not allow them to salute or pledge allegiance to a non-religious idol. In this ruling, the Court established that compelling a student to salute the flag was unconstitutional. Justice Robert Houghwout Jackson stated that, “the First Amendment cannot enforce a unanimity of opinion on any topic, and national symbols like the flag should not receive a level of deference that trumps constitutional protections.”[3]

More recently, however, in what seemed to be a thinly veiled contradiction to the Barnette ruling, the U.S. Court of Appeals in the 11th District handed down a ruling that supported mandating the pledge of allegiance in the case Frazier v. Winn (2008). Taking place in Palm Beach, Florida, this matter follows a very simple pattern to both the Landry and Barnette cases: after refusing to participate in the daily recitation of the pledge of allegiance without the written consent of a parent, a high school student was found to be in violation of a state Pledge of Allegiance statute that required all students to engage in the daily salute to the flag. The student was suspended as a result of this violation, and subsequently filed a lawsuit against the Florida Commissioner of Education. The U.S. Court of Appeals in the 11th District ruled to uphold the state Pledge statute on the grounds that state’s actions to restrict students’ free speech rights was justified in protecting parental rights to “control the upbringing of their children.”[4] After the Supreme Court denied a writ of certiorari in 2009 to hear this case, the decision of the lower 11st District Court became the reigning precedent for the region.

Post-Barnette and Frazier, there are currently 26 states that have statutes which make the pledge a staple in the classrooms every day. Some of these statutes even go a step further and mandate students to participate in the pledge.[5] Regarding the Landry case, the Texas Education Code particular goes as far as to outline the daily requirement of students to recite the pledge of allegiance to the United States flag, as well as the pledge of allegiance to the state flag. In order to circumvent the limitations placed on school districts by the Court in Barnette, the Texas Education Code has a protective clause that states: “On written request from a student's parent or guardian, a school district or open-enrollment charter school shall excuse the student from reciting a pledge of allegiance.”[6] Texas Attorney General Ken Paxton himself has recently come forward in support of this Texas Education Code by filing a motion of intervention regarding the aforementioned civil lawsuit, Landry v. Cypress Fairbanks ISD et al. Filed on September 25th of this year, the motion from the state of Texas alleges that “the People of the State of Texas, acting through their Legislature, have determined that the Pledge of Allegiance should be included in the educational experience of students in public and charter schools.”[7]

While a final ruling has not yet come out for Landry, the controversy surrounding speaks to the unease that American lawmakers and the judiciary system feel over the issue of students’ expression in schools. Even greater, over the past several decades, the American public has seen an increase in nationalism, which may be contributing to how schools are responding to their students acting in ways “contrary” to traditional patriotism. The question that arises from this wave of nationalism remains: should students be forced to participate in collective patriotism at the expense of their own beliefs?

[1] “Tinker v. Des Moines Independent Community School District.” Oyez. Accessed October 3, 2018.

[2] "Houston Teen Says She Was Expelled for Not Standing for Pledge of Allegiance." The Washington Post. October 08, 2017. Accessed October 3, 2018.

[3] “West Virginia State Board of Education v. Barnette.” Oyez. Accessed October 3, 2018.

[4] Priston, Laura. "Parents, Students, and the Pledge of Allegiance: Why courts must protect the marketplace of student ideas.” Boston College Law Review: 375-76.

[5] Attorney General of Texas. "AG Pax­ton Inter­venes into Law­suit to Defend Texas Pledge of Alle­giance Statute and Parental Rights." News release, September 25, 2018. Texas Attorney General.

[6] Texas Education Code, § Chapter 25-Section 25.082.

[7] Landry v. Cypress Fairbanks ISD et al (United States District Court Southern District of Texas September 25, 2018). Texas's Unopposed Motion to Intervene.