Pledge of Allegiance, T-shirts, and More

Bobby TruheHarding & Shultz (402) 434-3000btruhe@hslegalfirm.com

H & S School Law

@btruhe

Pledge of Allegiance

Rule 10• NDE Proposed Change to Rule 10• Based on NH “School Patriot Act”• Response to LB 990• State Board will vote on August 9-

10, 2012 • Effective date: 5 days after

submission to SOS

Rule 10“Each public school district shall require each such district’s schools to establish a period of time during the school day, when a majority of pupils is scheduled to be present, during which pupils will be led in the recitation of the Pledge of Allegiance in the presence of the flag of the United States of America, in grades kindergarten through twelve. Pupil participation in the recitation of the Pledge of Allegiance shall be voluntary. Pupils not participating in the recitation of the Pledge shall be permitted to silently stand or remain seated but shall be required to respect the rights of those pupils electing to participate.”

Rule 10• Not included:‾ Flag in each room‾ “First class of each day”

• Included‾ “establish a period of time”‾ “shall be lead”‾ “presence of the flag”‾ “silently stand or remain seated”

Rule 10: Issues Raised“establish a period of time”

• During the school day• Majority of pupils present• Should be consistent• Could be included in policy• NDE may check during

Rule 10 audits

Rule 10: Issues Raised“will be lead”

• You can select a leader, have teachers select a leader, or have students volunteer

• School-wide, PA system, individual classroom, etc.

Rule 10: Issues Raised“presence of the flag”

• Visible to students participating• Can be any type of flag• Local VFW may help

Student Participation“Pupil participation . . . shall be voluntary”

• Barnette: students may not be compelled to recite the Pledge

• Pupils must be free from pressure from teachers and students to recite the pledge

Frazier v. Alexandre (FL)• Frazier refused to stand for Pledge• Verbal spat with teacher• “You clearly have no respect! You

are so ungrateful and so un-American! Do you know what’s out there fighting that war? That flag you refuse to show respect to.”

Frazier v. Alexandre (FL)• Principal directed Frazier to wait

in the office until class was over • Court: school’s actions were

unconstitutional• NO STUDENT MUST STAND• Court ordered training for staff,

reprimand for Alexandre, $32,500 to Frazier

Student Participation• Myers: “schools do not have an

affirmative obligation to encourage students who may object . . . to remain seated”

• Goetz: can’t require student to leave the room

• Rabideau: Admin. liability because law is “well established”

Student Rights“shall be permitted to silently stand or remain seated but shall be required to respect the rights of those pupils electing to participate”

• Tinker: “reasonably conclude that [speech] will materially and substantially disrupt the work and discipline of the school”

Holloman v. Harland (11)• Alabama student refused to say

Pledge, scolded by teacher• Holloman protested: fist in the air• Given choice of punishment• Sued school, principal, and teacher

for violation of 1st Amendment

Holloman v. Harland (11)• Court: teacher, principal (Allred),

and school were all potentially liable

• Expressive conduct test: what reasonable person would think

• Tinker standard: must lead to more than comments or “de minimus” and overlooked impact

What about teachers?• Russo, Dunfey: teachers have the

same rights as students, can sue‾ May sit, can’t disrupt‾ Rule 10: can’t prevent Pledge

• Employee or citizen?‾ When acting in official duties,

not speaking as citizen‾ Board directive = official duties

What about teachers?Our advice:

• Don’t mess with it!• Take volunteers• Set up centralized system• Work with teachers who have

objections for religious reasons

T-shirts, Bands, & More

Tinker Standard“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained,”

B.H. v. Easton Area (PA)• “I ♥ Boobies” bands• Court: no material and substantial

disruption noted• Any projected disruption likely not

material or substantial• Talk to your teachers, and

document, document, document

Holloman v. Harland (11)• Case from above re Pledge• Tinker hypo: buttons which caused

a disruption at one school do not justify banning them at another school

• What if you’ve had a history of disruption involving a particular type of speech at your school?

Kuhr v. Millard P.S. (NE)• Julius Robinson murder• History of gang violence in MPS• Training• Students wore t-shirts and bands• In Sept. teacher noticed shirts• School suspended students for

violating policy against wearing gang-related clothes

Kuhr v. Millard P.S. (NE)• Students sued under 1st Amend.• Court: “Schools may preemptively

discipline students . . . if they have information which would reasonably lead them to forecast that the speech will cause disruption.”

Kuhr v. Millard P.S. (NE)Court: Tinker “reasonably forecast”

• Specific and significant fear• Of disruption at school• More than remote apprehension

or disturbance• School must point to “well-

founded” expectation of disruption

Kuhr v. Millard P.S. (NE)Court will look at:

• What officials knew—facts, training, and application

• Basis of the knowledge• Severity of threat• Likelihood of actual

disruption

Interesting Cases• Dariano: May 5, HS students wear

American flag shirts with history of racial tension—school won

• Zamecnik: “Be Happy, Not Gay” shirt—student won

• Defoe: Confederate flag shirts considered “racially hostile speech”—school won

Pledge of Allegiance, T-shirts, and More

Bobby TruheHarding & Shultz (402) 434-3000btruhe@hslegalfirm.com

H & S School Law

@btruhe