My favorite Supreme Court ruling in history is West Virginia v. Barnette, a 1943 case in which the high court said students cannot be compelled to pledge allegiance to anything against their will.
In delivering the ruling, Justice Robert Jackson wrote, “Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity.
“As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
“It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent.”
Justice Jackson’s eloquence, delivered 60 years ago this summer, apparently hasn’t reached some contemporary lawmakers.
First up, not surprisingly, is the state of Texas where the legislature is requiring the state’s public schools to recite the Pledge of Allegiance to the U.S. flag and a separate pledge to the Texas flag. No, I’m not kidding.
This school year is the first time the Lone Star State requires the recitation of both pledges in all classrooms. In a policy that is just inviting a legal challenge, students in Texas are required to recite the pledges unless they bring a note from a parent/guardian.
In case you’re wondering, the Texas Pledge is a lot shorter. I learned (via TBogg) that it says, simply, “Honor the Texas flag, I pledge allegiance to thee, Texas, one and indivisible.”
Though students can opt out with a note from home, the Texas law makes no similar option available to teachers. If a teacher happens to be a Jehovah’s Witness, for example, he or she would not be able to pledge allegiance to a flag without violating the tenets of his or her faith tradition.
Texas’ Pledge law may be inviting a legal challenge, but similar policies in other states have already been brought to court. In Colorado, for example, a federal judge ruled in August that a state law passed last year that required the recitation of the Pledge of Allegiance is unconstitutional and issued an injunction to prevent its implementation for this school year. In Colorado’s policy, students can opt out with a note, but teachers are obligated to participate.
And in Pennsylvania, the state passed a law requiring all students and teachers to recite the Pledge daily, and created a policy whereby children who refused to participate would have their parents notified by school officials. The ACLU filed suit, arguing the policy is unconstitutional, and in July, a federal judge agreed.
Not surprisingly, all three of these states passed these new provisions in the wake of the 9/11 terrorist attacks. Somehow, lawmakers in these states came to believe that the patriotic fervor that grew as a result of the attacks justified new laws to compel students and teachers to be patriotic, without regard for their wishes or religious beliefs.
This is a mistake. As TBogg said yesterday, “Nothing quite says ‘freedom’ like being compelled to recite a loyalty oath.”