Virginia School Board Votes to Allow Students to Sit During Pledge of Allegiance

Affiliate: ACLU of Virginia
January 11, 2005 12:00 am

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Policy Change Brings School System to Compliance with Constitution, ACLU Says

RICHMOND, VA–Under pressure from the American Civil Liberties Union of Virginia — and based on recommendations from its own lawyers — the Spotsylvania County School Board last night voted to remove a policy requiring students to stand during recitations of the Pledge of Allegiance.

“Not standing for the Pledge won’t win any school popularity contests,” said ACLU of Virginia Executive Director Kent Willis, “but the same constitutional principle that protects this kind of expression also protects your right to possess and espouse the religious and political beliefs of your choice. I don’t think anyone wants to change that.”

In a letter and legal memo sent last week, the ACLU warned school board members that students have a constitutional right both not to say the Pledge and to refuse to stand during recitations. Supervisors gave initial approval to change the policy in December, but were required to confirm that vote at its January 10 meeting in order for the policy to take effect.

The matter came to a head recently when a student at Ni River Middle School was told he must stand for the Pledge or be in violation of a 2002 policy requiring all Spotsylvania students to stand and place their right hand over their hearts during the daily recitation of the Pledge.

The policy evolved from a bill introduced by Senator Warren E. Barry that originally required students to stand and recite the Pledge unless they could articulate a religious objection and provide proof of their religious beliefs. The ACLU of Virginia, along with the Attorney General, originally expressed opposition to the bill, stating that requiring students to stand during the Pledge violated their First Amendment right to free speech, and ran contrary to state and federal laws. Legislators approved the bill, but explicitly affirmed the right of students to refuse to say the Pledge or stand for it.

“The right to refuse to stand for or recite the Pledge is about as fundamental as it gets in a free society,” Willis said. “Free speech not only means that the government can’t suppress your beliefs, but also that it cannot compel you to profess a belief you do not have.”

Willis’s letter to members of the Spotsylvania School Board follows.

January 7, 2005

Mr. Richard A. Fleming, Chairperson
Spotsylvania County School Board
829 Lincoln Drive
Fredericksburg, VA 22407

RE: Proposed Policy to Allow Students to Remain Seated During Pledge of Allegiance

Dear Mr. Fleming:

I am writing to urge you to vote in favor of the proposed policy allowing students to sit in silent protest during daily recitations of the Pledge of Allegiance at Spotsylvania County Public Schools. It is my understanding that a final vote on this policy will take place at the January 10 meeting of the Spotsylvania School Board.

Although the existing policy– which requires students to stand during the Pledge — is invalid and unenforceable under the First Amendment of the U.S. Constitution and Virginia law, there are nonetheless important practical and principled reasons to fix it.

The practical reason is that school officials who are unaware of the invalidity of the policy may attempt to enforce it, thereby violating the constitutional rights of students and subjecting the school system to possible legal action. This is precisely what occurred at Ni Middle School during 2004, and there is no reason to believe that it will not occur again.

The principled reason for adopting a new policy is that school officials should embrace and support the same constitutional rights they ask educators to teach to students. It is nothing short of hypocritical to teach children that the First Amendment protects their right of free expression and then to eliminate that right in a particular context without a compelling reason for doing so.

It is instructive to look back at the legislative process that brought the mandatory Pledge of Allegiance to Virginia’s public schools. The original bill, sponsored by Senator Warren E. Barry in the 2001 General Assembly, required students to stand and recite the Pledge unless they could articulate a religious objection documented by an “ecclesiastical officer.” The ACLU of Virginia, with support from then Attorney General Mark Earley, spent much of the session educating legislators on the First Amendment rights of students. By final passage, the requirement that students articulate and document reasons for not reciting the Pledge had been removed, and the bill included language explicitly protecting every student’s right to sit during recitations.

For your information, I have enclosed a brief legal memo explaining why you must vote in favor of the proposed policy. It is similar to the memo shared with legislators during the 2001 General Assembly session.

I thank you for your attention and leave you with a quote from the U.S, Supreme Court in the seminal case, Barnette v. West Virginia, that upheld the right of a student to refuse to recite the Pledge of Allegiance:

“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.”


Kent Willis
Executive Director

cc: Spotsylvania County School Board

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