West Virginia State Board of Education v. Barnette: Affirming Freedom of Speech in Schools

The case of West Virginia State Board of Education v. Barnette stands as a cornerstone in the jurisprudence of First Amendment rights, particularly concerning freedom of speech and religion within the educational system. This landmark Supreme Court decision, delivered on Flag Day, invalidated a compulsory flag salute law in public schools, affirming that students possess a degree of First Amendment rights. The ruling directly addressed the power of the state to compel ideological conformity, especially in the context of national symbols and expressions of patriotism.

Background of the Case

The events leading to West Virginia State Board of Education v. Barnette began with a resolution adopted by the West Virginia State Board of Education on January 9, 1942. This resolution mandated that the salute to the flag be a regular part of the program of activities in public schools, requiring all teachers and pupils to participate. Refusal to salute the flag was deemed insubordination, leading to expulsion. Readmission was denied until compliance. The expelled child was "unlawfully absent" and could be proceeded against as a delinquent. Parents or guardians were liable to prosecution, and, if convicted, were subject to fine not exceeding $50 and jail term not exceeding thirty days.

The resolution originally required the “commonly accepted salute to the Flag” which it defined. Objections to the salute as “being too much like Hitler’s” were raised by the Parent and Teachers Association, the Boy and Girl Scouts, the Red Cross, and the Federation of Women’s Clubs. Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah’s Witnesses.

This policy directly affected students like Marie and Gathie Barnette, who were expelled from Slip Hill Elementary in West Virginia for refusing to salute the flag. The Barnett sisters, along with other members of the Jehovah's Witnesses faith, held the view that saluting the flag was a violation of their religious beliefs, which forbade the worship of graven images. The Witnesses are an unincorporated body teaching 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. Children of this faith have been expelled from school and are threatened with exclusion for no other cause. Officials threaten to send them to reformatories maintained for criminally inclined juveniles. The compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind.

The Legal Challenge

Citizens of the United States and of West Virginia, 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 Barnett family, as appellees, sought an injunction against the enforcement of these regulations, arguing that they infringed upon their rights under the First and Fourteenth Amendments. The District Court enjoined enforcement against students. The case then made its way to the Supreme Court.

The Supreme Court's Decision

In a 6-3 decision delivered by Justice Robert H. Jackson, the Supreme Court overturned its previous ruling in Minersville School District v. Gobitis (1940). The Court held that compelling students to salute the flag was unconstitutional. It thus overruled its decision in Minersville School District v. Gobitis just three years earlier, finding that the flag salute was "a form of utterance" and "a primitive but effective means of communicating ideas", and therefore was speech to which the First Amendment applied.

Key Arguments and Reasoning

Justice Jackson intricately refuted the arguments that had been made in the Gobitis precedent. First, Jackson rejected the previous court's holding that the United States flag was a national symbol, stating that symbols are merely the prelude to speech, and that "a person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn". Second, Jackson rejected the holding that flag-saluting ceremonies were an appropriate way to build "cohesive sentiment" for national unity, warning that "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters." On the Gobitis holding that those who disagreed with a school board's regulation through political processes, Jackson argued that the conflict at issue was between authority and the individual, and that the Founding Fathers intended the Bill of Rights to protect minority rights from the whims of a majority.

The Court emphasized that the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Concurring and Dissenting Opinions

Justices Hugo Black and William O. Douglas wrote a concurring opinion to explain their reasons for changing their view from the prior Gobitis decision, in which both had joined the majority. In their concurring opinion, they expanded upon the futility of pledges and oaths as means to build patriotism.

The Justice who had written the Gobitis ruling in 1940 - Felix Frankfurter - strongly disagreed with how that precedent was being overturned in the Barnette ruling. Frankfurter reinforced his holding in Gobitis that those who disagree with a law should attempt to change it through the political process, rather than break that law due to religious conscience. Frankfurter's dissent was written from the perspective of his own Jewish roots, showing sympathy for other persecuted religious minorities but taking an impartial legal and unconstitutional view of the dispute and exercising judicial restraint.

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Implications and Legacy

West Virginia State Board of Education v. Barnette remains a powerful affirmation of individual liberties, particularly the right to dissent and the protection of minority rights against the will of the majority. The decision had far-reaching implications for the understanding of freedom of speech and religion in the context of public education.

Protection of Individual Conscience

The ruling underscored the principle that no authority, regardless of its position, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.

Overruling Minersville School District v. Gobitis

The decision explicitly overturned Minersville School District v. Gobitis, correcting what was perceived as an erroneous interpretation of constitutional rights. This reversal demonstrated the Court's willingness to reassess its precedents in light of evolving understandings of constitutional principles.

The Importance of Voluntary Patriotism

The Court's decision supported the idea that patriotism should be voluntary and spontaneous, rather than coerced through mandatory routines. This perspective suggests that genuine allegiance to a nation stems from free minds and an informed understanding of its values.

Continued Relevance

The principles established in Barnette continue to resonate in contemporary debates about freedom of speech, religious expression, and the role of education in a democratic society. The case serves as a reminder of the importance of safeguarding individual liberties and protecting the rights of minority groups.

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Subsequent Legal Developments

In 2004, the Pledge of Allegiance was again the focus of a Supreme Court case, but Elk Grove Unified School District v. Newdow raised an issue not present at the time of Barnette. In Elk Grove, atheist father Michael Newdow claimed that the words “under God,” added to the pledge in 1954, constituted an unconstitutional establishment of religion in violation of the First and Fourteenth Amendments.

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