Pledge of Allegiance Requirements

Kelley Baker

Karen Haase

kbaker@hslegalfirm.com

khaase@hslegalfirm.com @KarenHaase

Steve Williams

Bobby Truhe

swilliams@hslegalfirm.com

btruhe@hslegalfirm.com @btruhe

State Board Pledge of Allegiance Requirements At its August meeting, the State Board of Education adopted a rule which requires school districts to establish a time during the school day for students in kindergarten through the 12th grade to be led in reciting the Pledge of Allegiance.

The new rule, which awaits the review and approval of the Attorney General’s and the Governor’s offices, is codified in section 003.12 of Rule 10. It states: 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.

The State Board has given school boards considerable latitude in deciding how to implement the requirement. Note: Boards must make sure their schools comply with the requirements regarding the Pledge. Boards are not required to adopt a policy but some may choose to create one and/or regulations for the sake of clarity or the ease of showing compliance during an accreditation audit.

Period of Time. A district must establish a “period of time” during the school day at each of its schools for students to recite the Pledge. The only requirement is that the period be at a time when a majority of students is “scheduled” to be present, but that does not require that the majority actually be present. Thus, if there were a field trip at an elementary school that would cause a majority of students to be absent, the rule does not require the school to reschedule the recitation period. Further, there is no requirement that recitation periods be held at the same time among buildings. However, once established, the periods should not be changed frequently. The schedule may be in policy, but the rule does not require the board to set the schedule or put it in policy, and there are good reasons for the administration to set it. Whatever approach you

choose, make a record of the schedule as it may be checked by Department of Education representatives during an accreditation audit.

The Presence of a Flag. The Pledge is to be recited “in the presence of the flag of the United States of America,” but the rule does not specify the form of the flag. Consequently, the flag may be cloth, on a computer screen, paper, a photograph, on television, or in some other form.

Participation is Voluntary. Pupil participation in reciting the Pledge is “voluntary.” Those who do not wish to participate may stand silently or remain seated. In either case, they are to “respect the rights of those pupils electing to participate.” Students should not be pressured to participate by the teachers or other students, and school personnel should protect their right to refrain from participating. Bear in mind that students may exercise their First Amendment right of free speech and expression so long as, in the U.S. Supreme Court’s words in Tinker v. Des Moines Independent School District, they do not “materially or substantially disrupt the work of the school.”

Pupils will be Led in the Pledge. Pupils are to be led in reciting the Pledge, but the rule does not specify who should be the leader. The leader could be an administrator, a teacher, a pupil, a volunteer, or someone reading the pledge over the PA system. The key is that the leader accepted the role voluntarily. Though the rule does not address this issue, teachers have the same rights as students not to lead or participate in reciting the Pledge so long as their conduct is not disruptive. Boards and administrators must be sensitive to their teachers’ positions and should not coerce or pressure a teacher who is reluctant to lead the Pledge. There are cases where teachers successfully sued their school districts after they were mistreated for not participating in the Pledge.

ACLU’s Interest. Amy Miller, attorney for the American Civil Liberties Union, Nebraska Foundation, has written to superintendents throughout the state, stating: “We have heard from teachers whose religions or personal beliefs do not permit them to recite the Pledge of Allegiance (“Pledge”) without violating their sincerely held beliefs.” She asked administrators to instruct staff that they do not have to recite the Pledge, stand while it is being recited, or “otherwise participate against their individual consciences.” She asked superintendents to inform her of the actions they have taken, but that is discretionary, not required.

If you have any questions or concerns regarding the State Board’s new Pledge requirement or any other issue, please contact your school attorney or Kelley, Karen, Steve, or Bobby.

I:\3\7613\E-mail Updates\127 Pledge of Allegience.doc