Student against requiring standing for the pledge

A Blair student will officially complain to principal Phillip Gainous about the school's policy within the next week about requiring students to stand during the Pledge of Allegiance. This complaint follows a October 24 meeting with Gainous, and an earlier letter written by the student expressing his objections to the school's policy.

Junior Elliot Wolf will file a "Complaint From the Public" form if Gainous refuses to retract the school's policy of requiring students to stand for the pledge. Wolf's complaint states:

"Montgomery Blair High School is unlawfully (description given by numerous court cases and by the chief of legal advisor to the Montgomery County Board of Education, Judith Bresler) forcing students to stand during the pledge of allegiance. This action is in direct violation of Maryland legal precedent, federal legal precedent, precedent established in outside jurisdictions, Maryland state law, and MCPS policy. If students refuse to stand, they are to be sent down to the principal's office or sometimes publicly chastised by teachers, an action explicitly forbidden by the Maryland Supreme Court. By instituting such a policy, Montgomery Blair High School is subject to possible litigation and is violating the fundamental constitutional rights of students."

The action requested from the principal states:

"I request that the school immediately inform staff and students that students are not required to stand for the pledge of allegiance, and immediately cease punishing students who do refuse. I also request that staff be informed that it is illegal and immoral to chastise or otherwise informally or unofficially punish students who refuse to stand. I also request that the words "please stand for the pledge" be removed from the morning announcements to ensure that students do not feel officially pressured in any way to stand during the pledge."

Wolf recently called all of the schools in Montgomery County to see how many schools concur with Blair's policy of requiring students to stand for the pledge. The results showed that Blair and Einstein high schools are the only schools that enforce the policy. Seneca Valley and Wootton high schools have the policy, but do not enforce it.

In early November, Wolf talked with George LaRoche, a constitutional lawyer who works in Takoma Park, who said precedence supports Wolf's position. "He could not remember any case in which MCPS or Blair were involved in which the right of the school to force students to stand was upheld," said Wolf.

LaRoche expressed surprise to Wolf that the "generally progressive" Blair administration was enforcing its pledge policy. "On this issue, they are obviously violating the fundamental rights of the students," said LaRoche, according to Wolf.

Although Wolf has "absolutely no intent of suing the school," Wolf said LaRoche has volunteered a list of at least 10 other constitutional lawyers whose testimony, La Roche said, would ensure that the school system would "most certainly lose." The lawyers, according to Wolf's conversation with LaRoche, would be willing to write a letter to the MCPS Board of Education expressing the constitutional and legal violations that stem from the school's policy.

Wolf was inspired to begin his crusade, he says, after being "berated" by the teacher in front of the class for being unpatriotic when he refused to stand for the pledge. "I found the whole experience extremely embarrassing," said Wolf.

In response to the embarrassing lecture from his teacher, Wolf wrote a letter to principal Philip Gainous, reprinted below the article, that explains what he believes to be the unconstitutionality of forcing students to stand for the pledge. He expresses his opinions in the letter:

"Since any part of the pledge, including standing, is legally defined as a patriotic act, the school does not have the right to force students to participate. By forcing students to stand and punishing them if they refuse, Blair is contradicting MCPS policy, effectively breaking state & federal law, and violating the civil rights of any student who wishes to dissent."

Montgomery County Public Schools has an unwritten policy requiring students to stand for the pledge. According to Wolf, this policy goes against the Constitution and the historical decisions of the Supreme Court. He says that although the motives behind the schools' policy might be based on respect for the "pledge ceremony," the perceived motivation for standing is patriotic, and therefore "cannot be forced."

Wolf's objections to standing for the pledge are not derived from any particular phrase within the pledge, such as "under God." Rather, Wolf's objections are from the principle that schools should not be allowed to force students to support the schools' political statements. "It is not any particular statement; it is the idea that students must stand up to acknowledge it," Wolf says.

During his meeting with Gainous, he had a "long discussion" with him the reasons and justification for the school's insistence that students stand during the pledge. Wolf says that Gainous was "very open" to his ideas and the legal arguments, but said that MCPS lawyers see requiring students to stand for the pledge as legal. Wolf plans to contact the MCPS lawyers in the future to hear their opinions.

According to Wolf, the school's position is that standing for the pledge is an act of respect for classmates and teachers. To the school, standing for the pledge is a ceremony rather than a "patriotic exercise." Wolf says the main counter to that argument is the Banks v. Florida Board of Education case that establishes that standing is "no less a gesture of acceptance and respect than is the salute or the utterance of the words of allegiance."

Wolf hopes that, through his letter and meeting, he will be able to make a change in school policy. Although this change has been attempted several other times by students, Wolf feels that he will succeed because his letter does not "editorialize," but simply states what his research has proven is national law.

Wolf does not feel that refusing to stand for the pledge is unpatriotic. "If someone is willing to put up with scorn to protect their freedom then I'd say they're even more patriotic than someone who silently conforms," he said.

Wolf's letter to Gainous is reprinted below:

I am writing to express concern over the school policy which provides that all students must stand in acknowledgement of the flag during the Pledge of Allegiance. Despite the fact that students are not required to recite the pledge, the requirement that students stand to acknowledge the flag during the pledge constitutes political censorship and lack of respect for any person who does not wish to participate in the daily recitation of the pledge.

The First Amendment protects the freedom of expression and the right to political dissent. Those who do not hold opinions that parallel those of the government or the average citizen cannot be persecuted or punished for their beliefs. The right of the minority, whether it is a minority of one or of 25 million, must be respected. If a person refuses to stand for the pledge on a basis of principle, they are making a political statement through their inaction, just as those who stand up and recite the pledge are making a political statement through their actions.

Political dissenters founded this country and allowing political dissent works to the benefit of every American. The government requires constant checking on the part of both itself and American citizens in order to ensure that it is not gaining too much power or working against the best interests of the American people. The idea that the people can "petition the government for a redress of grievances" is the mechanism by which the United States can adapt and grow without infringing on the fundamental rights of citizens. MCPS has a similar policy, and I therefore would like to ask you for a redress of grievances.

The issue as to the legality of forcing students to recite the pledge has been brought to court many times since the pledge first began to be widely used in schools. The issue of whether students are required to stand up and acknowledge the flag and their peers has also been debated by many courts across the country.

The main precedent by which students are not forced to recite the pledge is the 1943 Supreme Court ruling in the case of the West Virginia State Board of Education v. Barnette. In the Court's opinion,

"We think 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 our Constitution to reserve from all official control."

Although the court makes no specific mention of forcing students to stand up, it still limits a school's right to force patriotic acts or political doctrine on students.

From the Federal 2nd Circuit Court of Appeals, the 1973 case of Goetz v. Ansell is specific on the issue of whether students are required to stand. It allows non-participating students who do not wish to engage in the flag salute to engage in "a silent, non-disruptive expression of belief by sitting down" and does not require them to leave the classroom.

The Maryland Supreme Court itself also decided that students objecting to the salute of the flag were not required to stand. The 1971 case of the State of Maryland v. Lundquist invalidated a state requirement that students who object to daily patriotic exercises stand while the rest of the class recites the pledge.

The 1970 Florida case of Banks v. Board of Public Instruction also establishes that standing is "no less a gesture of acceptance and respect than is the salute or the utterance of the words of allegiance."

The Goetz v. Ansell case and the Banks v. Board case explicitly establish that standing out of respect for the flag can be construed as a patriotic exercise, and that a student's right to non-participation must be respected as with the act of reciting the pledge itself.

The MCPS Rights and Responsibilities handbook clearly states that:

"[Students] will have the opportunity to participate in and/or watch patriotic exercises in school. [Students] cannot be required to say a pledge, sing an anthem, or take part in a patriotic exercise. No one will be permitted to intentionally embarrass [a student if they] choose not to participate."

Since any part of the pledge, including standing, is legally defined as a patriotic act, the school does not have the right to force students to participate. By forcing students to stand and punishing them if they refuse, Blair is contradicting MCPS policy, effectively breaking state & federal law, and violating the civil rights of any student who wishes to dissent.

Furthering the Goetz v. Ansell decision, the US Court of Appeals also ruled in the 1981 case of Lanner v. Wimmer that "while public schools may conduct patriotic ceremonies such as the pledge of allegiance, they may not compel participation by children who object on free exercise grounds."

Furthermore, the same clause of Maryland code that provides that schools shall hold patriotic exercises every day also provides that "any student or teacher who wishes to be excused from the requirements of [the classroom flag salute and pledge of allegiance] shall be excused." [Maryland code of education: title 7: subsection 1: article 7-105].

The court also added in the Goetz v. Ansell decision, a case that established that "standing is itself part of the pledge," that because a school "cannot compel participation in the pledge, it cannot punish non-participation." Students are regularly sent to the administration for refusal to stand or participate in the Pledge, and are sometimes further punished for continual refusal to stand.

Standing for the pledge of allegiance can also be interpreted as an act of symbolic speech. Symbolic speech, generally defined as an act which conveys a symbolic meaning, is, according to the Supreme Court, "akin to `pure speech,' which, [as has been] repeatedly held, is entitled to comprehensive protection under the First Amendment." The Supreme Court also ruled in the case of Tinker v. Des Moines that "public schools are an appropriate place to exercise symbolic speech as long as normal school functions are not unreasonably disrupted." Furthermore, the court stated that"

"In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."

It is clear that the requirement that students stand to salute the flag is contradicted by a great deal of legal precedent and constitutional interpretation. The presiding judge over the 1963 case of Pennsylvania v. Schwepp described forcing students to participate in the pledge of allegiance as a "flagrantly unconstitutional act." It is surprising that the school requires that students still stand up, despite the progressive nature of Montgomery County and of Blair in particular.

I therefore respectfully ask that you allow students who object to standing during the Pledge of Allegiance to instead remain seated in a quiet and non-disruptive manner and allow them to respectfully and responsibly express their political opinions. If there is truly to be "liberty and justice for all" in this country, then students must be at liberty to express their views freely without reprisal or guilt.

The opinions of Supreme Court Justices Black and Douglas expressed in the West Virginia State Board of Education v. Barnett ruling eloquently express my ultimate view on forcing any part of the Pledge of Allegiance on students:

"Words uttered under coercion are proof of loyalty to nothing but self- interest. Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men."

Sincerely and respectfully,
Elliott Wolf, Class of 2004