In just the last month alone: A high-school football player in Massachusetts was reportedly suspended for one game after kneeling during the national anthem and quickly reinstated after a swift social-media response; a 14-year-old Native American girl in California who has refused to stand during the Pledge of Allegiance since elementary school out of respect for her culture lost points off her class grade for participation; a 15-year-old in suburban Chicago was allegedly pulled out of his seat when he also chose to remain seated for the Pledge in Spanish class; and in Collier County School District in southern Florida, a high-school principal said that students would “be sent home” if they didn’t stand for the national anthem.
Charles C. Haynes, the founding director of the Religious Freedom Center at the Newseum Institute in Washington, D.C., said there has been an uptick in teachers and administrators seeking guidance for what’s permissible regarding the Pledge and Anthem, which he partly attributes to the Kaepernick controversy. Haynes said that he carefully explains the law—“students have the right to opt out … [no one] can make them stand or punish them or make them feel ostracized”—but that sometimes it’s a tough sell. “There's this feeling [from educators] that ‘We just can't let them get away with that; it's disrespectful to America.’”
According to Haynes, there are 45 state statutes requiring patriotic exercises in schools—the Pledge of Allegiance, the national anthem, or both. Iowa, Hawaii, Nebraska, Vermont, and Wyoming are the only states without a law dictating the practice. While the vast majority of states require recitation of the pledge at some time during the day, in a small number of cases the specifics vary, such as California where it’s only mandatory in elementary school, and Ohio and North Dakota, where statutes say it’s optional.
Further muddying the picture is a World War II-era U.S. Supreme Court decision, West Virginia State Board of Education v. Barnette, that found it unconstitutional under the First Amendment to force students to salute the flag and participate in patriotic rituals. The lawsuit involved two elementary-school girls in West Virginia who, as Jehovah's Witnesses, were forbidden to pledge allegiance to the American flag because of religious beliefs. The 1943 ruling paved the way for students to opt out of reciting the pledge by establishing that government could not coerce people to salute or pledge to patriotic symbols, as it was a violation of their constitutionally protected free-speech rights.
Some 70 years later, it’s almost universally understood by school officials that they have to allow students to excuse themselves from these exercises, Haynes said. Still, the tension remains between knowing the law and obeying it. “There’s always been an undercurrent about this,” he said, noting that the resentment and pushback to the Barnette decision has lasted for decades; many school officials, Haynes added, “remain angry about it and think it's an insult to the flag and to the country when … students dissent.”
The national symbolism of the pledge and anthem runs deep, and not all agree that students should be part of this wave of protests. The conservative New York Times commentator David Brooks discouraged high-school football players from kneeling for the anthem in a recent column—branding it “extremely counterproductive” and likening the act of standing and singing to a “foundational creed” with a unifying influence. This expectation, however, can lead to a false unity, said Haynes, the First Amendment scholar, who cautioned that standing for the anthem or saluting the flag as sacred acts, in and of themselves, are little more than idolatry. “The irony [of stipulating that students stand] is that … the Pledge [and] the national anthem are symbols for the right to dissent, the right to exercise your conscience.”