I am a teacher. I teach Government and we have a constitutional law question. There is another teacher who is punishing students who do not stand during the pledge. According to West Virginia State Board of Education V. Barnette, The students can not be compelled to SAY the pledge, can they be forced to Stand while others say it?
4 Answers from Attorneys
I would argue that standing is part of saying the pledge. Otherwise, a student wouldn't stand after class has commenced.
I agree that a student who can't be compelled to recite the pledge can't be compelled to stand up while others recite it. Note, though, that only public schools are forbidden to make students recite the pledge. Private schools are not, at least not on the same basis as public schools. If you teach at a private school the other teacher may be able to make students stand during the pledge, and perhaps even recite it.
I don't know what the current state of case law is as far as students having to stand during the pledge, but I would not bring the issue to court given the current composition of the U.S. Supreme Court and the California Supreme Court. Anybody who tried might well wind up with an adverse decision that could stand as precedent for years to come. You, of course, have no standing to sue.
My gut would say the following: If you state the rule correctly, then if you are having kids stand out of respect for the pledge, then you cannot punish them for not standing, because that is a speech issue. However, if you need them to stand to organize the students, or to count them, or other non-pledge related school need, then I think you can have them stand. The teaches probably never gave a thought as to why the kids should be standing other than that "everyone else is doing it" - and we know how teachers hate to receive that as an answer from kids.
I would love to come in and give a talk to your students about constitutional law.
Daniel Bakondi, Esq.
The Law Office of Daniel Bakondi
870 Market Street, Suite 1161
San Francisco CA 94102
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