West Virginia State Board of Education v. Barnette (1943)

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

Pursuant to West Virginia statute, the appellant Board of Education adopted a resolution requiring all teachers and pupils to salute the flag. Refusal to salute the flag was to be regarded as an act of insubordination, which subjected a student to expulsion. In addition, the child's parents would be liable for prosecution because the child would be considered a delinquent. Appellee parents were Jehovah's Witnesses whose children were expelled for failing to salute the flag. The parents sought an injunction to restrain enforcement of this resolution against Jehovah's Witnesses, because Witnesses believe that the flag is a graven image, and that it is forbidden to salute any graven image.

Issues: Should the Court overrule the decision in Minersville School District v. Gobitis, 310 U.S. 586 (1940), which held that requiring a Jehovah's Witness to say the Pledge of Allegiance as a condition of remaining in a public school did not violate the First Amendment guarantee of freedom of religion? Did this case raise a substantial federal question or did the Gobitis decision already settle the constitutional questions raised in this dispute? Are salutes of the type mandated by the Board symbolic speech? Does compelling recitation of the Pledge or saluting the Flag violate the First Amendment?

Reasoning: There is a difference between teaching a class designed to inspire patriotism and a love of country and compelling students to declare a belief. The court found that "there is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632 (1943). The display of a flag is protected speech. Stromberg v. California, 283 U.S. 359 (1931). The Court stated that "it is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punished. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence." West Virginia State Board of Education v. Barnette, 319 U.S. 624, 633 (1943). .

Analysis: The Court determined that the case raised a substantial federal question because the Gobitis decision was determined on the grounds of religious freedom, while this case was challenged under the freedom of speech provisions of the First Amendment. The Court differentiated this case from Hamilton v. Regents, 293 U.S. 245 (1934), which permitted states to require military training as part of college enrollment, because college enrollment was not compulsory. The Court determined that saluting a flag was symbolic speech, which could not be compelled absent an imminent threat of some type of serious harm, if it could be compelled at all. More significantly, the Court did not see this dispute as a religious issue. The Court acknowledged that the students in this particular case were motivated by a concern for religious freedom. However, the Court also recognized that people could have equally-valid non-religious reasons to object to the forced salute. Because the Court found that the Board did not have the power to make the salute a legal duty, it did not have to determine whether a non-religious objection would merit the same protection as a religious objection. Instead, the Court resolved this case by looking at the First Amendment's guarantees of freedom of speech and how that related to freedom from compulsory speech.