West Virginia State Board of Education v. Barnette
Decided on June 14, 1943; 319 US 624


West Virginia Board's resolution ordering students and teachers to salute the flag was unconstitutional.

 

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: First Amendment, freedom of expression

B. Legal Question Presented:

Does a state ordering "that the salute to the flag become 'a regular part of the program of activities in the public schools,'" constitute coercion in violation of the First Amendment

II. CASE SUMMARY:

A. Background:

"The Board of Education on January 9, 1942, adopted a resolution... ordering that the salute to the flag become 'a regular part of the program of activities in the public schools,' that all teachers and pupils 'shall be required to participate in the salute honoring the Nation represented by the Flag...

Failure to conform is 'insubordination' dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile the expelled child is 'unlawfully absent' and may be proceeded against as a delinquent. His parents or guardians are liable to prosecution, and if convicted are subject to fine not exceeding $50 and jail term not exceeding thirty days.

Appellees... brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah's Witnesses... The Board of Education moved to dismiss the complaint [which alleged] 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. It restrained enforcement as to the plaintiffs and those of that class."
 

The Board of Education appealed to the U.S. Supreme Court which affirmed the judgment of the District Court for the Southern District of West Virginia.

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Mr. W. Holt Wooddell, of Webster Springs, W. Va., for appellants. Mr. Hayden C. Covington, of Brooklyn, N.Y., for appellees.
IV. THE SUPREME COURT'S DECISION:

"While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual... Free public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction...

We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."

The US Supreme Court affirmed the judgment of the District Court for the Southern District of West Virginia.

Justice Vote: 6 Pro vs. 3 Con
  • Jackson, R. Pro (Wrote majority opinion)
  • Douglas, W. Pro (Wrote concurring opinion)
  • Black, H. Pro (Wrote concurring opinion)
  • Murphy, F. Pro (Wrote concurring opinion)
  • Stone, H. Pro (Joined concurring opinion)
  • Ruttledge, W. Pro (Joined concurring opinion)
  • Roberts, O. Con (Wrote dissenting opinion)
  • Reed, S. Con (Joined dissenting opinion)
  • Frankfurter, F. Con (Joined dissenting opinion)
  • V. A WIN OR LOSS FOR THE ACLU?

    The ACLU, as amicus curiae, urged affirmance of the judgment of the District Court for the Southern District of West Virginia; the Supreme Court affirmed in a 6-3 vote, giving the ACLU an apparent win.