The National Anthem, Flag Salutes, or the Lack Thereof
In recent days, some prominent sports figures have chosen to either sit or kneel during the playing of the National Anthem prior to their games, as a form of protest. As a result, there have been reports from around New Jersey and the United States of professional, amateur and school coaches and players following suit. In response to these actions, questions have arisen as to what recourse, if any, public school districts in New Jersey have to prevent students and staff from engaging in such a silent protest. The answer is simple – there is none.
Under 36 U.S.C. § 301, Congress has stated that, during the National Anthem, when the flag is displayed, individuals who are not in uniform or who are not members of the military “should face the flag and stand at attention with their right hand over their heart, and men not in uniform … should remove their headdress with their right hand and hold it over the left shoulder, the hand being over the heart…”1 When the flag is not being displayed, “all present should face toward the music and act in the same manner they would if the flag were displayed.”2 By using the word “should” instead of “shall” Congress made the acts of standing and saluting optional instead of mandatory.
While there are few reported cases discussing whether a student or employee in a public school must stand at attention for the National Anthem, there have been a number of cases regarding a parallel issue of standing in school during the Pledge of Allegiance.3 The New Jersey Legislature, by statute, requires every board of education to procure a United States flag and display it in each classroom and assembly room of each school.4 That statute also requires pupils to salute the flag and repeat the Pledge of Allegiance every day.5
In 1978, constitutionality of the requirement that students stand and salute the flag was challenged by a student who did not believe in the words of the Pledge.6 She argued that being forced to stand violates her First Amendment right against compelled participation in the Pledge. The Third Circuit Court of Appeals agreed, holding that section (c) of the statute is an unconstitutional requirement.7 Thus, the Court struck down only that portion of the statute that requires pupils to salute the flag and recite the Pledge of Allegiance.
As a result, so long as students are not being disruptive, they cannot be required to participate in a flag salute during the National Anthem or Pledge of Allegiance. While it is possible that the students, coaches and school officials may have to endure stares, jeers, or complaints about these activities, public school administrators should be aware that there is little they can do about silent protest. However, should the activities become disruptive, administrators are urged to consult their school board attorneys for specific advice and counsel.
1 36 U.S.C. §301(b)(1)(C)(emphasis added).
2 36 U.S.C. §301(b)(2)(emphasis added).
3 For a more detailed discussion see NJASA Administrative Guide, Prayer in School and School Events, Vol. 45, No. 12 (December 2015). See also Sheldon v. Fannin, 221 F.Supp. 766 (D.Ariz. 1963) (holding that a public school violated the First Amendment rights of students when it disciplined students who refused, on religious grounds, to stand for the National Anthem).
4 N.J.S.A. 18A:36-3.
5 N.J.S.A. 18A:36-3(c).
6 Lipp v. Morris, 579 F.2d 834 (3d Cir. 1978).
7 Id. at 836.