With the nation today feeling that it is under threat, political and civic leaders have called on schools to promote patriotism by rallying around the American flag. One Supreme Court justice has maintained that society "may in self-protection utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty." He added, "The flag is the symbol of our national unity, transcending all internal differences.... National unity is the basis of national security." (1)
Following the terrorist attacks of September 11, 2001, and during the wars in Afghanistan and Iraq, the flag appeared on front lawns and lapels, milk trucks and billboards, in a show of solidarity. But the Supreme Court justice's galvanizing words about the flag were not written in response to current events. Rather, they were penned nearly six decades ago as part of a landmark legal battle over the American flag and the First Amendment. As World War II raged in Europe and in the Pacific, the historic U. S. Supreme Court decision would have a profound impact on the definition of freedom. The flag-salute controversy provides a rich and relevant context in analyzing the complex and sometimes competing issues of national interest and individual liberty, patriotism, and free speech.
Recent threats to national security have rekindled patriotic sentiments with an intensity not seen since World War II and the Cold War era. The American flag and the Pledge of Allegiance in schools remain at the center of controversy. For example, one month after the September 11 attacks, the U.S. Secretary of Education requested some 100,000 principals to lead almost 52 million students in a nationwide, synchronized recitation of the Pledge of Allegiance. (2) Additionally, more than twenty-five states have laws requiring schools to set aside time for the pledge. At least eighteen of those laws were passed after September 11, 2001. (3) Various groups and individuals have since mounted legal challenges against some of the more recent laws and local school policies which require students to stand for the pledge, (4) notify parents if students refuse to stand, or suspend teachers for displaying students' anti-war posters. (5)
Every Congressional session since 1990 has attempted to pass bills to limit free speech pertaining to the flag, including the "Flag Protection" Amendment to the Constitution. This campaign began in response to the Supreme Court ruling in Texas v. Johnson (1989) regarding flag burning. (6) The Ninth U. S. Circuit Court of Appeals has ruled in Newdow v. U. S. Congress (2002) that teachers can no longer lead students in reciting the Pledge of Allegiance because of the phrase "under God." (7) In opposition to this lower-court decision, Congress, state legislatures, and attorneys general of all fifty states have asked the Supreme Court to review the case. (8)
Teachers and students can explore these public debates that impact the classroom, using one of the most influential periods in U.S. constitutional history to set the stage. Sixty years ago this past June, a case involving the flag salute came before the Supreme Court. In the tense climate of World War II, young Lillian Gobitas and her brother Billy had been expelled from school for refusing to pledge allegiance to the American flag. The Gobitas children were Jehovah's Witnesses, and their religious convictions against worshiping idols led them to disobey a law that made the flag salute mandatory in the schools of their town. The Supreme Court initially upheld their expulsion from school in the case Minersville School District v. Gobitis. (A federal district court clerk misspelled Gobitas.)
But on Flag Day, June 14, 1943, the Supreme Court reversed itself in the landmark decision West Virginia Board of Education v. Barnette. In a dramatic ruling overturning its Gobitis decision, the court struck down compulsory flag-salute laws as unconstitutional. …