The Pledge of Allegiance and the battle between civil rights & civics education

In the early 1940s, the United States was involved in World War II and patriotism was high. However, this patriotism was mixed with feelings of worry and fear. In this atmosphere, the State of West Virginia enacted laws requiring its schools “to conduct certain courses of instruction for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism,” among other things. In furtherance of these laws, the West Virginia Board of Education passed a resolution requiring all students to salute the flag and recite the pledge of allegiance. The passage of this resolution came after a 1940 United States Supreme Court decision, Minersville School District v. Gobitis, in which Jehovah’s Witnesses had challenged the district’s requirement of the pledge as a violation of their right to the free exercise of religion. In that decision the Court held that the school’s interest in national unity was compelling and should be given deference.

A group of Jehovah’s Witnesses objected to the post-Minersville resolution in West Virginia, claiming that its implementation infringed on their religious freedom. The religious beliefs of Jehovah’s Witnesses prohibit the making of an image or likeness of anything to which they bow down before or serve. They considered the flag an image and refused to salute it. The Board’s response to a student’s refusal to salute the flag was to expel the student for insubordination with readmission denied until the student complied with the resolution to salute the flag and recite the pledge. Meanwhile, the expelled student was considered “unlawfully absent” and could be proceeded against as a delinquent, which would subject the student’s parents and guardians to prosecution. If the parent or guardian was convicted, they were subject to punishments ranging from fines to jail time.

The Jehovah’s Witnesses claimed the Board’s resolution was an unconstitutional denial of their religious freedom and freedom of speech and also claimed that the resolution was invalid under the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution. They sued the Board of Education, requesting an injunction to restrain enforcement of the resolution. The case reached the United States Supreme Court, styled as West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

The Supreme Court found that “[t]he 14th amendment…protects the citizen against the State itself and all of its creations—Boards of Education not excepted.” The Court found that freedom of religion is “susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect” and that there was no such grave and immediate danger present in the facts of the case. Moreover, the Court found that the very fact that the Board of Education was educating for purposes of promoting citizenship was in itself “reason for scrupulous protection of Constitutional freedoms.”

The Supreme Court held that the Board of Education’s action violated the First and Fourteenth Amendments to the U.S. Constitution and determined that the pledge of allegiance is a form of speech protected by the First Amendment stating that “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 the Constitution to reserve from all official control.”

Subsequent challenges to the pledge have often focused on the words “under God,” which were added to the pledge by Congress in 1954. On the whole, these challenges have been unsuccessful. In 2004, an atheist parent brought an action against a California pledge requirement, claiming that the inclusion of the words “under God” in the pledge made the requirement that teachers lead the pledge a violation of his daughter’s rights under the First Amendment’s establishment and free exercise clause. In Elk Grove Unified School District v. Newdow, the Court did not reach the First Amendment issues, instead finding that the parent did not have standing to bring the case because he did not have custody of his daughter. Other cases have proposed that the “under God” language constitutes a violation of the equal protection clause of the Fourteenth Amendment. But these cases have also been unsuccessful.

The history of the Pledge of Allegiance and the legal challenges to its recitation provide not only an interesting exploration of the tensions between the important role of schools and other units of government in promoting civic values and education while also maintaining the rights of Americans to exercise their religious freedoms and civil rights. For more information on these topics, we suggest www.constitutioncenter.org and www.oyez.org. 

Lauren Evans DeJong is an attorney with the law firm Stahl Cowen Crowley Addis LLC in Chicago. She is the LRE Newsletter Co-Editor and past Chair of the LRE Committee.