Reciting the pledge of allegiance is a long tradition in U.S. schools. It’s also a long tradition for some students to stay silent or sit during the pledge, as a way of expressing their political or religious beliefs. Somewhat more recently, student athletes have held silent protests while the national anthem plays at high school and college football games. Teachers, coaches, and administrators regularly try to punish these students, but they have to answer to the First Amendment and the constitutional right to freedom of expression in public schools.
Silence and Sitting Count as Speech
As far back as 1943, the U.S. Supreme Court ruled that requiring all public school students to recite the pledge of allegiance was a violation of their First Amendment rights, because free speech includes the right not to speak against your beliefs (West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)). And as the Court made clear more than 20 years later, public schools must also respect students right to express their opinions through actions (known as “symbolic speech”), as long as they aren’t being too disruptive. (Learn more about when schools may limit students' free speech rights.)
The Supreme Court hasn’t directly addressed the issue of students refusing to stand for the pledge or the national anthem—clear examples of symbolic speech. But federal appellate courts have agreed that public schools may not force students to stand during the pledge. And just as public schools (including colleges and universities) shouldn’t punish students for exercising their First Amendment rights, they also shouldn’t withhold privileges—like participation in school sports or attending school games—for the same actions.
Do Kids Need Parents’ Permission to Sit?
Schools may require students as a whole to recite and stand for the pledge of allegiance, as long as they excuse individuals who choose not to participate for religious, political, or personal reasons. Most states have laws like this. But in a few states like Texas and Florida, students won’t be excused from the pledge without their parents’ permission or request.
What happens if parents and their kids disagree on this issue? For now at least, the answer depends on where you live. One federal appellate court struck down a Pennsylvania statute requiring that parents be notified when their children refused to recite the pledge, because it violated the students’ First Amendment rights (The Circle School v. Pappert, 381 F.3d 172 (3rd Cir. 2004)). But a different court upheld Florida’s parental permission requirement, reasoning that parents’ right to control their children trumped the students’ free speech rights (Frazier v. Winn, 535 F.3d 1279 (11th Cir. 2008)).
What About Private Schools?
The First Amendment applies only when government—including public schools—tries to restrict the expression of ideas and opinions. So religious and other private schools may require their students to recite the pledge of allegiance, stand for the national anthem, and refrain from any kind of protests at school.
When a Lawyer Can Help
If school officials are threatening punishment because you or your child refused to participate in the pledge of allegiance or the national anthem, an education lawyer can help protect the student's rights in disciplinary proceedings. You may also want to speak with a lawyer if you believe school officials have a policy of ignoring students' constitutional rights by forcing them to stand during the pledge, taking away privileges for sitting out the national anthem, or singling them out when they take these and similar actions expressing their beliefs. An education or civil rights lawyer can explain any legal options you may have, including the possibility of suing the school for civil rights violations.