West Virginia State Board of Education Digest

West Virginia State Board of Education v. Barnette
Wiki description
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is a decision by the Supreme
Court of the United States holding that the Free Speech Clause of the First Amendment to the United
States Constitution protected students from being forced to salute the American flag and say the Pledge of
Allegiance in school. The Court's 6-3 opinion, delivered by Justice Robert H. Jackson, is remembered for
its forceful defense of free speech and constitutional rights generally as being placed "beyond the reach of
majorities and officials."
It was a significant court victory won by Jehovah's Witnesses, whose religion forbade them from saluting
or pledging to symbols, including symbols of political institutions. However, the Court did not address
the effect the compelled salutation and recital ruling had upon their particular religious beliefs, but instead
ruled that the state did not have the power to compel speech in that manner for anyone.
Barnette overruled a 1940 decision on the same issue, Minersville School District v. Gobitis (also
involving the children of Jehovah's Witnesses), in which the Court stated that the proper recourse for
dissent was to try to change the school policy democratically.
However, in overruling Gobitis the Court primarily relied on the Free Speech Clause of the First
Amendment rather than the Free Exercise Clause.
June 14, 1943
Mr. Justice Robert Jackson
Facts: (from wiki which was an almost verbatim copy nung orig. decision):
Following the Minersville School District v. Gobitis decision, the West Virginia
Legislature amended its statutes to require all schools in the state to conduct courses of
instruction in history, civics, and in the Constitutions of the United States and of the State "for the
purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism,
and increasing the knowledge of the organization and machinery of the government." The West
Virginia State Board of Education was directed to "prescribe the courses of study covering these
subjects" for public schools.
The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely
from the Court's Gobitis opinion and ordering that the salute to the flag become "a regular part of
the program of activities in the public schools," that all teachers and pupils "shall be required to
participate in the salute honoring the Nation represented by the Flag; provided, however, that
refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with
accordingly." What was required was a "stiff-arm" salute, the saluter to keep the right hand raised
with palm turned up while the following is repeated: "I pledge allegiance to the Flag of the United
States of America and to the Republic for which it stands; one Nation indivisible, with liberty and
justice for all."
Failure to comply was considered "insubordination" and dealt with by expulsion. Readmission
was denied by statute until the student complied. This expulsion, in turn, automatically exposed
the child and their parents to criminal prosecution; the expelled child was considered "unlawfully
absent" and could be proceeded against as a delinquent, and their parents or guardians could be
fined as much as $50 and jailed up to thirty days. On the advice of an early attorney, Mr Horace
S. Meldahl of Charleston, the Barnettes had avoided the further complications by having their
expelled girls return to school each day, though the school would send them home.
The Barnettes (Jehovah’s Witness Members) brought suit in the United States District Court for
themselves and others similarly situated asking its injunction to restrain enforcement of these
laws and regulations against Jehovah's Witnesses. The Witnesses taught and still teach that the
obligation imposed by law of God is superior to that of laws enacted by temporal government.
Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says:
'Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven
above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow
down thyself to them nor serve them.' They consider that the flag is an 'image' within this
command. For this reason they refused to salute the flag. Children of Jehovah's Witnesses had
been expelled from school and were threatened with exclusion for no other cause. Officials
threatened to send them to reformatories maintained for criminally inclined juveniles. Parents of
such children had been prosecuted and were being threatened with prosecutions for causing
delinquency.
Short Version of Facts:
In 1942, the Petitioner (West Virginia) adopted a rule that forced all teachers and pupils to pledge
allegiance the nation’s flag each day. If the student refused he would be found insubordinate and expelled
from school. He would not be readmitted to school until he conformed. Meanwhile, he was considered to
be “unlawfully absent” and subject to delinquency hearings.
The parents could be fined $50 per day with a jail term not to exceed 30 days. The Respondent asked for
an exception for all Jehovah’s Witnesses because this pledge goes against their religious belief. But he
was denied an exception.
Issue: Does this rule compelling a pledge violate the First Amendment of the Constitution?
Held: Yes. Compelling a salute to the flag infringes upon an individual’s intellect and right to choose
their own beliefs. The Free Speech clause of the First Amendment prohibits public schools from forcing
students to salute the American flag and say the Pledge of Allegiance. District Court affirmed.
The majority focuses on the right of persons to choose beliefs and act accordingly. As long as the actions
do not present a clear and present danger of the kind the state is allowed to prevent, then the Constitution
encourages diversity of thought and belief. The state has not power to mandate allegiance in hopes that it
will encourage patriotism. This is something the citizens will choose or not.
Dissent (J. Frankfurter):
Frankfurter said that the court was overstepping its bounds in striking down the West Virginia law. He
said, too, that freedom of religion did not allow individuals to break laws simply because of religious
conscience.
Frankfurter continued, arguing that if the Court is frequently striking down laws it is circumventing the
democratic process, since the Court cannot work to reach a compromise. It either strikes down a law or
lets it stand; it cannot simply modify or qualify a law as a legislature can.