Request By:
Mr. Tilford L. Underwood
Assistant Superintendent
McCracken County Public Schools
Paducah, Kentucky 42001
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
As the Assistant Superintendent of the McCracken County Schools you have asked the Office of the Attorney General for a formal advisory opinion concerning the recent 1980 legislation on the pledge of allegiance to the flag. You have asked this office to give guidance for adopting proper procedures to implement this new legislation and for dealing with some of the problems that may develop in complying with the statute.
The 1980 General Assembly passed House Bill 32 which amends, by adding to, KRS 158.175. What is now subsection (1) of KRS 158.175 became law in 1978. * The new 1980 language is contained in subsection (2). KRS 158.175 now reads in full as follows:
"(1) As a continuation of the policy of teaching our country's history and as an affirmation of the freedom of religion in this country, the board of education of a local school district may authorize the recitation of the traditional Lord's prayer and the pledge of allegiance to the flag in public elementary schools. Pupil participation in the recitation of the prayer and pledge of allegiance shall be voluntary. Pupils shall be reminded that this Lord's prayer is the prayer our pilgrim fathers recited when they came to this country in their search for freedom. Pupils shall be informed that these exercises are not meant to influence an individual's personal religious beliefs in any manner. The exercises shall be conducted so that pupils shall learn of our great freedoms, including the freedom of religion symbolized by the recitation of the Lord's prayer.
(2) By August 1, 1980, the board of education of each public local school district shall establish a policy and develop procedures whereby the pupils in each elementary and secondary school may participate in the pledge of allegiance to the flag of the United States at the commencement of each school day."
The first legal issue with respect to this legislation is whether it is constitutionally sound. It is the conclusion of this office that this statute as it relates to the pledge of allegiance violates no provision of either the United States or Kentucky Constitutions. The key to the facial constitutionality of KRS 158.175, as we will explain more fully below, is that pupil participation in the recitation of the pledge of allegiance to the flag is voluntary. As an aside, we note this voluntariness is fully consistent with the historical conception of the pledge of allegiance to the flag. The pledge of allegiance was written by Frances Bellamy, a Baptist minister, to be used at the Chicago World's Fairgrounds in October, 1892, on the quadricentennial celebration of the discovery of America, that is, Columbus Day. It was conceived as a voluntary and recommended patriotic exercise. See
State v. Lundquist, 278 A.2d 263, 265 (1971).
The federal law with respect to the pledge of allegiance provides as follows:
"The 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.', should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute. "
36 U.S.C., Sect. 172.
The absolute requirement that participation in reciting the pledge of allegiance to the flag be voluntary so that constitutional problems will not exist is directed by the constitutional consideration of the matter by the United States Supreme Court. In
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), The Supreme Court overruled
Minersville School District v. Gobitis, 310 U.S. 586 (1940), and held that a West Virginia State Board of Education resolution which required children, as a prerequisite to their continued attendance at public school, to salute the flag and recite the pledge, was unconstitutional as applied to children of Jehovah's Witnesses since it denied them freedom of speech and freedom of worship. Although there has been some argument that the Barnette decision was grounded on the issue of the religious beliefs of the Jehovah's Witnesses, the prevailing view is that Barnette was decided as a question of free speech and expression under the First Amendment, applicable to the states under the Fourteenth Amendment. See
Street v. New York, 394 U.S. 576, 593 (1969) and
State v. Lundquist, at page 273, supra. Mr. Justice Jackson wrote for the Court in Barnette, saying:
"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. If there are any circumstances which permit an exception, they do not now occur to us." 319 U.S., at 642.
There is no question but that the refusal to recite the pledge and salute the flage is a form of expression. Expression pledge and salute the flag is a form of expression. Expression may take the form of silence.
Subsection (2) of KRS 158.175 directs each public local school district to have already adopted (as of August 1, 1980) "a policy and develop procedures whereby the pupils in each elementary and secondary school may participate in the pledge of allegiance to the flag of the United States at the commencement of each school day." While we read this language to call for policy and procedures which highlight the constitutional requirement that students "may participate" if they wish in the pledge of allegiance, we also believe that this language directs that a school district's policy and procedures must call for the daily ceremony of the recitation of the pledge to the flag and that this ceremony will be offered at the commencement of each school day for all who desire to participate. Thus, we believe the clear intent of the General Assembly is that: (1) the pledge of allegiance ceremony of recitation will be offered each school day, not just once or twice a week, and (2) that the opportunity to participate in the pledge of allegiance will occur as a first item on the school day agenda, not at midmorning or at the end of the school day.
A legal issue of considerable importance is how the school policy and procedures provide for handling the situation of the student who does not want to participate in the pledge of allegiance and who, as noted above, unquestionably has the constitutional right to not be compelled to participate in the pledge. The limited case law on this issue is sound and consistent. A student may not be required to stand in silence or be required to leave the classroom during the recitation of the pledge of allegiance. For thorough discussions of these points, see
Lipp v. Morris, 579 F.2d 834 (3rd Cir.1978),
Goetz v. Ansell, 477 F.2d 636 (2d Cir.1973),
Banks v. Board of Public Instruction of Dade County, 314 F.Supp. 285 (S.D.Fla.1970),
Frain v. Baron, 307 F.Supp. 27 (E.D.N.Y.1969), as well as
State v. Lundquist, supra. We are of the opinion that students who, for religious or political beliefs or other personal convictions, do not participate in the salute and pledge of allegiance to the flag should remain in their seats quietly. It must be emphasized that although the student who does not desire to participate in this ceremony symbolizing part of the democratic heritage of the United States and our country's many freedoms must be permitted to exercise one of those valued freedoms, that of expression, that student is without any right to do anything to disrupt the recitation of the pledge of allegiance by, for example, lying down, making derisive motions, etc. The United States Supreme Court was careful to point out in
Tinker v. DeMoines Independent School District, 303 U.S. 503, 513 (1969) that "[c]onduct by the students, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of free speech. " See also Goetz v. Ansell, Banks v. Board of Public Instruction of Dade County, and Frain v. Baron, all supra.
The last point which we believe needs to be made concerns the role of the teachers in connection with the daily recitation of the pledge of allegiance to the flag. Subsection (1) of KRS 158.175 provides that the exercise of the pledge of allegiance shall be "conducted so that pupils shall learn of our great freedoms. . . ." A school district's policy and procedures regarding this matter should take this factor into consideration and give guidance to the teachers in carrying out this requirement. A board of education may desire that the opportunity to recite the pledge of allegiance be associated with other basic citizenship education activities. How teachers are to instruct and educate their students in the pledge of allegiance might be covered in the school board policy. See
Palmer v. Board of Ed. of City of Chicago, 466 F.Supp. 600 (N.D.Ill.1979), afm'd. 603 F.2d 1271 (7th Cir.1979), cert. den., 62 L. Ed. 2d 659 (Jan. 7, 1980), where a teacher was terminated after refusing, due to her personal beliefs, to assist young students in learning and reciting the pledge of allegiance. Cf. Pusso v. Central Sch. Dist. No. 1, Towns of Rush, Etc., N.Y., 469 F.2d 623 (2d Cir. 1972), where a high school art teacher's refusal to engage in a school's daily flag ceremony was found to be constitutionally protected expression. It must be reemphasized that school employees should be directed to avoid any action intended to coerce or influence a student to participate in the pledge if the student desires not to so participate. The teachers should be cautioned to do nothing to cause embarrassment or ridicule to come to the child who, for whatever reason, declines to participate in the pledge of allegiance. The student who declines to participate should not be required to or even asked to defend the reason or reasons for this position. Again, the student should simply be permitted to sit quietly in his or her seat during the time of the recitation of the pledge of allegiance to the flag.
We trust the above adequately provides guidance in the consideration of policy and procedures which should be, without further delay, adopted by each public common school district if the August 1st date was not met.
Footnotes
Footnotes
* This opinion will not address any aspect of KRS 158.175 dealing with the recitation of the traditional Lord's prayer.