The Witnesses are an unincorporated body teaching that the obligation imposed by
law of God is superior to that of laws enacted by temporal government. Their religious
beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says:
'Thou shalt not make unto thee any graven image, or any likeness of anything
that is in heaven above, or that is in the earth beneath, or that is in the water
under the earth; thou shalt not bow down thyself to them nor serve them.'
They consider that the flag is an 'image' within this command. For this reason they
refuse to salute it. [319 U.S. 624, 630] Children of this faith have been expelled
from school and are threatened with exclusion for no other cause. Officials threaten
to send them to reformatories maintained for criminally inclined juveniles. Parents
of such children have been prosecuted and are threatened with prosecutions for causing
The Board of Education moved to dismiss the complaint setting forth these facts and
alleging that the law and regulations
are an unconstitutional denial of religious freedom, and of freedom of speech, and
are invalid under the 'due process' and 'equal protection' clauses of the Fourteenth
Amendment to the Federal Constitution. The cause was submitted on the pleadings to
a District Court of three judges.
That Federal District court held that the Board of Education could not require the
Jehovah’s Witnesses to salute the flag and recite the Pledge of Allegiance. It prevented
the School from making the people who started the law suit and others who similarly
believed would not have to recite and salute the flag.
The Board of Education appealed that decision directly to the U.S. Supreme Court.
The U. S. Supreme Court (many of whom had ruled in the Minersville School District
v. Gobitis that Jehovah’s Witnesses must salute the flag and say the Pledge of Allegiance
The decision of this Court in Minersville School District v. Gobitis and the
holdings of those few per curiam decisions which preceded and foreshadowed it are
overruled, and the judgment enjoining enforcement of the West Virginia Regulation
Mr. Justice BLACK and Mr. Justice DOUGLAS, concurring.
The statute requires the appellees to participate in a ceremony aimed at inculcating
respect for the flag and for this country. The Jehovah's Witnesses, without any desire
to show disrespect for either the flag or the country, interpret the Bible as commanding,
at the risk of God's displeasure, that they not go through the form of a pledge of
allegiance to any flag. The devoutness of their belief is evidenced by their willingness
to suffer persecution and punishment, rather than make the pledge.
We believe that the statute before us fails to accord full scope to the freedom of
religion secured to the appellees by the First and Fourteenth Amendments.
... Long reflection convinced us that although the principle is sound, its application
in the particular case was wrong. Jones v. Opelika, 316 U.S. 584, 623 , 62 S.Ct.
1231, 1251, 141 A.L.R. 514. We believe that the statute before us fails to accord
full scope to the freedom of religion secured to the appellees by the First and Fourteenth
... The state did not claim that a clear and present danger would be created if
the students remained passive during the pledge.
...Finally, compulsion is not a legitimate means for creating national unity.
The Supreme Court decided the students were in the right, and on First Amendment
grounds struck down the West Virginia ordinance as violating the right of free expression.
The Court stated:
"Educating the young for citizenship is reason for scrupulous protection of constitutional
freedoms of the individual," ... "if we are not to strangle the free mind at its
source and teach youth to discount important principles of our government as mere
The Court determined that students had the right not to be coerced by school administrators
to doing something that disagreed with their religious beliefs. Free speech in this
case meant the right not to say something, in this case, the Pledge of Allegiance.
The next significant student rights case would not be heard until twenty (20) years
Tinker v. Des Moines Independent Community School District (1969)
It was in the era of the Vietnam war. Petitioner John F. Tinker, 15 years old, and
petitioner Christopher Eckhardt, 16 years old, attended high schools in Des Moines,
Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old student in junior
In December 1965, a group of adults and students in Des Moines held a meeting at
the Eckhardt home. The group determined to publicize their objections to the hostilities
in Vietnam and their support for a truce by wearing black armbands during the holiday
season and by fasting on December 16 and New Year's Eve. Petitioners and their parents
had previously engaged in similar activities, and they decided to participate in
the program.The students were suspended from school for wearing black armbands to
protest the Government's policy in Vietnam. They sought nominal damages and an injunction
against a regulation that the respondents had promulgated banning the wearing of
District Court dismissed the complaint. It upheld the constitutionality of the school
authorities' action on the ground that it was reasonable in order to prevent disturbance
of school discipline. 258 F.Supp. 971 (1966). The District Court dismissed the complaint
on the ground that the regulation was within the Board's power, despite the absence
of any finding of substantial interference with the conduct of school activities.
The Court of Appeals, sitting en banc, affirmed the Federal District Court when there
as an equally divided court, which left the lower court decision stand.
The United States Supreme Court held for the students right to a silent protest.
In writing in favor of the students for the majority, Justice Abe Fortas wrote these
"It can hardly be argued that either students or teachers shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate … School officials
do not possess absolute authority over their students. Students in school as well
as out of school are 'persons' under our Constitution. They are possessed of fundamental
rights which the State must respect … In the absence of specific showing of constitutionally
valid reasons to regulate their speech, students are entitled to freedom of expression
of their views."
But Fortas added an important caution to certain activities:
conduct that "materially disrupts class work or involves substantial disorder
or invasion of the rights of others is, of course, not immunized by the constitutional
guarantee of freedom of speech."
In other words, not all student conduct is First Amendment protected, only that which
does not disturb the classroom environment or invade the rights of others. This standard,
also known as the "material and substantial disruption test," has basically remained
the standard in which the school's right to prescribe free speech is examined at
the secondary rank as well as at public colleges and universities.
After the Tinker case, a host of cases were brought at the lower court level litigating
public school free speech issues. Many of these came down on the side of freedom
of expression for students. Many lower courts found themselves asking, after Tinker
v. Des Moines, what student speech can in fact be regulated.
Bethel School District No. 403 v. Fraser (1986)
At a school assembly of approximately 600 high school students, Matthew Fraser made
a speech nominating a fellow student for elective office. In his speech, Fraser used
what some observers believed was a graphic sexual metaphor to promote the candidacy
of his friend. As part of its disciplinary code, Bethel High School enforced a rule
prohibiting conduct which "substantially interferes with the educational process
. . . including the use of obscene, profane language or gestures." Fraser was suspended
from school for two days.
The U.S. Supreme Court in a 7 to 2 decision stated that it was appropriate for the
school to prohibit the use of vulgar and offensive language. The Supreme Court set
some limits on student First Amendment rights when the Supreme Court sided with the
Chief Justice Burger distinguished between political speech which the Court previously
had protected in Tinker v. Des Moines Independent Community School District (1969)
and the assumed sexual content of Fraser's message at the assembly. Burger concluded
that the First Amendment did not prohibit schools from prohibiting vulgar and lewd
speech since such discourse was inconsistent with the "fundamental values of public
The Court found that Fraser had failed the "substantial disorder" part of the Tinker
test. Chief Justice Warren Berger, writing for the majority of 7 (seven) justices,
said that schools have a responsibility to instill students with "habits and manners
of civility as values."
The effect of Fraser's speech, suggested Berger, was to undermine this responsibility;
therefore, he did not receive First Amendment protection for it. Not only can schools
take into account whether speech is offensive to other students, said Berger, "the
undoubted freedom to advocate unpopular and controversial views in schools and classrooms
must be balanced against the society's countervailing interest in teaching students
the boundaries of socially appropriate behavior."
The Bethel case showed that the Supreme Court saw limitations on student free speech
rights and to that extent overruled to some extent (or perhaps clarified) the ruling
in Tinker v. Des Moines. For although
Hazelwood School District v. Kuhlmeier (1988)
The Spectrum, the school-sponsored newspaper at Hazelwood East High School in Missouri
was looking for trouble when it decided to publish an article on pregnancy among
students naming, names, as well as an article on students of divorced parents. It
may have been an errant