A DISCUSSION OF LAW AND JOURNALISM

Occupying the Pledge of Allegiance

Pledge of Allegiance

By José I. Ortiz

Salvador Allende, Chile’s former president and reformer, once said, “To be young and not revolutionary is a contradiction, even biologically.”

I’ve done my fair share of protesting. Back home in Puerto Rico, I’ve participated in marches, sit-ins and the 62-day shut down of my college campus protesting the government’s draconian spending cuts on education. Coming to New York for law school just as the Occupy Wall Street protests began helped calm my homesickness. This is why the story that I read recently about a Maryland high school student’s protest caught my attention.

Ever since she was in the seventh grade, 15 year old Enidris Siurano-Rodríguez of Montgomery County has chosen to sit quietly each morning while her classmates have stood and pledged allegiance to the flag. Earlier this year, one teacher told her that she had to stand. When she refused, she was taken to the principal’s office where she was asked (not too nicely) to explain why she refused to stand for the Pledge of Allegiance, according to an article in a major Puerto Rican newspaper. Ms. Siurano-Rodríguez – Puerto Rican born but living in Maryland since she was three years old – is protesting what she believes to be an “antidemocratic” political situation between the Caribbean island and the United States.

While it’s unclear whether there have been actual disciplinary measures taken against her by school officials, Ms. Siurano-Rodríguez has been told that she might be separated from the class during the Pledge of Allegiance if she refuses to participate. Can a public school do this? Are school officials legally permitted to hinder a student from quietly protesting just because it might be deemed unpatriotic? LASIS investigates.

For those of you who aren’t up on your Caribbean geopolitics: Puerto Rico is home to about four million Spanish-speaking people. The residents of the island became U.S. Citizens in 1917 (via the Jones Act) and were later granted the ability to form the Commonwealth government that exists today. While the island is self-governing, Congress still retains the power to veto any laws passed by the Puerto Rican legislature and the U.S. Constitution reigns as the supreme law of the land. The debate about whether Puerto Rico is just a dressed-up modern-day colony is as heated as ever and even the White House recently backed the idea of holding another plebiscite on the issue.

Back to the matter stateside: The law regarding the right to protest in the specific context of a school is pretty clear and has been since 1969 when the Supreme Court decided the case of Tinker v. Des Moines Independent Community School District. In this case, a number of students were disciplined for wearing black armbands to school protesting the Vietnam War. Because the Court reasoned that one does not “shed” the constitutional right of free speech “at the schoolhouse gate” the students could continue their protest. Tinker established the “substantial disruption” test that protects student protests on school grounds unless the protest is substantially and materially disruptive of the regular functions of the school. A 1986 Supreme Court case, Bethel School District v. Fraser, affirmed the decision in Tinker but limited protected protests in schools to speech that is not “lewd” or “vulgar”.

Different circuits around the country have defined exactly what this means over the years. A 2011 4th U.S. Circuit Court of Appeals case noted that mere “discomfort” or “unpleasantness” was not enough to be considered a substantial disruption. Sounds like this might be Ms. Siurano-Rodríguez’s case.

While Ms. Siurano-Rodríguez has probably not been formally disciplined yet, she has certainly been embarrassed. But, being embarrassed at school is probably not enough to get her into federal courts.

Luckily for her, Maryland has state law on the issue.

The Maryland statutes that regulate public schools have a provision requiring that the Pledge of Allegiance be recited in every classroom and by every teacher and student. There is an exception, however. Any teacher or student “who wished to be excused… shall be excused.” This exception is the product of litigation in Maryland as well as other neighboring states about the constitutionality of a law requiring everyone to pledge allegiance without exception.

And as it turns out, Ms. Siurano-Rodríguez’s county’s school system has internal regulations that go beyond Maryland’s statute in protecting a student’s right not only to not participate in “patriotic exercises” but also to be free of “embarrassment for failure to participate.”

So, it seems that this student not only has the right to protest in her school (as long as she’s not disturbing anyone) but she probably also has a good case against school officials within her state. The ACLU agrees and is backing her (and a number of other students across the country). While the original article I read about this case says that Ms. Siurano-Rodríguez and the ACLU decided to sue, they have both denied this claim elsewhere. Instead, they’ve sent school officials a letter asking for an official apology and for none of this to appear in the student’s disciplinary record.

Ms. Siurano-Rodríguez has faced criticism for living here, benefiting from the  American way of life and education, and viewing Puerto Rico as her country.

She’s not the first to feel that way, though, and there are probably good arguments on both sides.  We couldn’t resist closing with a musical version of both sides of the debate.

It’s a lively debate, but it’s clear that Ms. Siurano –Rodriguez has the law on her side.

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  1. Occupying the Pledge of Allegiance – Legal As She Is Spoke

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