Letter: NYCLU Expresses Concern To Chancellor Levy Over Mandatory Recitation Of Pledge Of Allegiance

October 18, 2001 Mr. Harold O. Levy, Chancellor New York City Board of Education 110 Livingston Street Brooklyn, New York 11201 Re New York City Board of Education Resolution Requiring Recitation of Pledge of Allegiance in Public Schools Dear Chancellor Levy: I write to express the New York Civil Liberties Union’s concerns regarding the Board of Education’s resolution requiring all public “schools to lead students in the Pledge of Allegiance at the beginning of every school day and at all school-wide assemblies and school events.” In its landmark decision rejecting the compulsory Pledge of Allegiance, the Supreme Court of the United States cautioned that “to believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.” It is noteworthy that the Court rendered this decision in 1943, during World War II. Whatever the patriotic wisdom of requiring schools to incorporate the Pledge into the school routine, the resolution correctly acknowledges that the Board of Education cannot compel any student to participate. This is a matter of political and religious freedom guaranteed by the First Amendment. See West Virginia State Board of Education et al. v. Barnette et al., 319 U.S. 624 (1943). Subsequent court decisions have further amplified the First Amendment principles and clarified the rights of students who refuse to recite the Pledge of Allegiance. They are entitled to remain seated quietly in the classroom and cannot be removed or expelled from the classroom, or otherwise subjected to discipline, harassment or retaliation for their refusal to salute the flag. Goetz v. Ansell, 477 F.2d 636 (2d Cir. 1973); see also Frain v. Baron, 307 F.Supp. 27 (E.D.N.Y. 1969); Matter of Bustin, 10 E.D.R. 168 (1971). While the New York City schools can lawfully make the recitation of the Pledge of Allegiance part of the daily school routine, the Board of Education bears a heavy responsibility to ensure that no student is compelled to participate. The Board must make sure that students are not subjected to retaliation, discipline or ostracism because of their views. This is particularly important because, as a result of the policy, students who object to reciting the Pledge of Allegiance must publicly express their opposition to their teachers and their peers in order to act in accordance with their beliefs. We appreciate the Chancellor’s strong statements that discrimination and intolerance have no place in the New York City schools. We believe that additional steps are necessary to meet the schools’ constitutional obligation. Accordingly, the NYCLU requests that the Board of Education distribute a notice to principals, teachers and students to informing them that:

• participation in the Pledge of Allegiance is entirely voluntarily and that no student or school employee shall be subject to discipline, retaliation, or ostracism for not participating;
• students who choose not to participate shall be permitted to remain seated in the classroom and shall not be required to leave the room;
• parents whose children have been subjected to harassment, retaliation or discipline as a result of their failure to participate on the pledge can contact a named individual at an identified phone number at the Board of Education for assistance.

We urge you to develop and implement teacher training concerning the First Amendment rights of students. The Chancellor’s office should also monitor and follow-up on complaints. As the Board incorporates the Pledge of Allegiance into the school routine, it must also protect the values “for which it stands” and abide by not just the letter, but the spirit of the constitutional protection of free speech and religion. Sincerely, Donna Lieberman