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Sitting for the Pledge, Kneeling for the National Anthem and Other Protests―What Does the Law Say?

Kacie Kefgen

By Kacie Kefgen, MASB Assistant Director of Labor Relations and Legal Services

DashBoard, Sept. 20, 2017

Patriotic ceremonies and refusals to participate in them have been frequently in the news over the past year or so. How should school officials respond if students protest in their districts?

As you likely know, Michigan law requires that schools ensure that students have an opportunity to recite the Pledge of Allegiance to the flag of the United States each school day (MCL 380.1347a). That same statute also states that a student shall not be compelled to recite the Pledge and that administrators must ensure that the student suffers no penalty or bullying at school as a result.

There are also First Amendment protections around student conduct and the Pledge of Allegiance. Numerous cases have repeatedly confirmed that students may not be punished for refusing to participate in the Pledge―either by refusing to recite it or refusing to stand during the ceremony.

The seminal case on this issue was decided in 1943 by the Supreme Court, so while the current furor over this issue makes it feel fresh, it is a controversy that we seem to recycle over time. In that case, the students in question were Jehovah’s Witnesses and considered it contrary to their religious beliefs to salute a flag, and they refused to take part in the Pledge of Allegiance, which had been required by the West Virginia State Board of Education starting in 1942 (W Va State Bd of Ed v Barnette, 319 US 624; 63 S Ct 1178; 87 L Ed 1628 (1943)).

Fewer cases have involved the national anthem, but the results have been the same―students have the right not to participate so long as they do not behave disruptively.

Other legal questions? Feel free to contact the MASB Legal Department at 517.327.5900.

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