In 1917, President Woodrow Wilson wrote about the American flag" ... which we honor and under which we serve, is the emblem of our unity, our power, our thought and purpose as a nation." Alongside the flag, the "Pledge of Allegiance" has been heard echoing in school hallways for many decades after it was first published in 1892. Despite the historical significance of both, it is nearly impossible to tune into a local news station or scan news websites without hearing or learning of a recent event in which a person or group declined to recognize the flag or refused to stand for the Pledge. As a result, the question school districts grapple with concerns how to balance students' and teachers' First Amendment rights with the districts' interest in minimizing substantial and material disruptions of and interferences with the educational process.

As governmental entities, public school districts are subject to constitutional constraints. In the case of a public school employee or student refusing to stand for the Pledge or refusing to salute the flag, the application of the First Amendment, through the right of freedom of speech that it guarantees United States citizens, prevents a school district from compelling employees or students to stand and/or salute. Through its anti-retaliation protection, the First Amendment also protects citizens from adverse action by the government in response to an individual's exercise of his or her right to freedom of speech, including when that speech is symbolic, such as by the burning of a flag or the wearing of a garment containing a political message.

The United States Supreme Court spoke directly to the question of compelled "speech" in the case of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), in which the Court held that students who had a religious objection to the "Pledge of Allegiance" based on their membership in the Jehovah's Witness faith could not be forced to salute the American flag and recite the Pledge in school. The Supreme Court explained that saluting the flag and saying the Pledge are forms of expression. Therefore, compelling a student to salute the flag and recite the Pledge, particularly in the face of a religious objection, violates that student's First Amendment rights to freedom of speech and freedom of religion.

South Carolina law, in S.C. Code § 59-1-455, reflects the Barnette decision, acknowledging the right of a student or other person to refrain from saying the Pledge at school activities. Specifically, the statute notes that "[a] person who does not wish to participate may leave the classroom, may remain in his seat, or may express his nonparticipation in any form which does not materially infringe upon the rights of other persons or disrupt school activities." Section 59-1 -455 continues to state that any person who exercises his or her right to refrain from saying the Pledge may not be penalized for failing to participate.

1 During fall 2016, the question whether an athlete should be compelled to stand during the playing of the national anthem received significant media attention, largely as the result of San Francisco 49ers quarterback Colin Kaepernick's refusal to stand for the Star-Spangled Banner. Of course, because a professional football team is a non-governmental entity and, therefore, not subject to the legal constraints that the First Amendment of the Constitution places on the government, the San Francisco 49ers were free to take whatever action they deemed appropriate in response to Kaepernick's actions. A similar occurrence happened most recently this month, when the #Take A Knee campaign grew, particularly in light of the current administration's remarks towards those athletes who chose not to stand for the national anthem. Similarly, students at Georgetown University allege that they were uninvited to attend U.S. Attorney General Jeff Sessions' lecture about free speech after the students publicized plans to protest his event.

The case of Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969), is further instructive on the issue of student expression. In Tinker, the Court held that a school could not punish students who were protesting the Vietnam War by wearing black armbands. The Court explained that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," continuing to make it clear that students have the right to express themselves through actions as well as words. The Court explained that, in order to take disciplinary action in response to a student's acts of expression, school officials must be able to prove that the conduct in question would "materially and substantially interfere" with school operations.

Concerning a public employee's right to freedom of expression, it is a well-settled principle of law that a school district may not retaliate against an employee for exercising his or her right to freedom of speech, so long as that speech involves a matter of public concern. In the case of Pickering v. Board of Education, 391 U.S. 563 (1968), the Court held that a public school teacher had the right to speak on issues of public importance and could not be dismissed from his or her position for that speech. Likewise, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that a public employee's speech about a matter of public concern is protected under the First Amendment, so long as the employee is voicing his or her opinion as a private citizen and not pursuant to his position as a public employee.

Certainly, we understand and empathize with the fact that there are many parents, students, and other citizens who find these types actions by students and/or employees inappropriate. We further understand that, in some extreme circumstances, there have been calls for a school district to either compel an employee or student to stand or take some punitive action against the individual. However, based on the above legal precedent, we do not believe that districts may lawfully require their employees and/or students to stand during the national anthem, nor may districts take any action against the employee or student that could be considered punitive and thus retaliatory.

Finally, if a district takes disciplinary action against an employee or a student, not only could the district be sued, but district employees and members of district boards also could be sued in their individual capacity. In such a case, trustees and employees ultimately could be personally responsible for covering the cost of any verdict returned against them by a jury. Generally, government officials are entitled to qualified immunity from any suit alleging a violation of an individual's civil rights where the official's alleged conduct "does not violate clearly established statutory or constitutional rights" about which a reasonable public official would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Here, however, as noted above, the right of public school employees and students to freedom of expression has been well-settled since at least the 1960s, thus negating any argument that this issue is not "clearly established."

Should you have any questions about this legal alert, please do not hesitate to contact White & Story, LLC. Stay tuned for our Issue of Month concerning student discipline.