March 7, 2000
The Honorable Michael O. Leavitt
Office of the Governor
Utah State Capitol
Salt Lake City, Utah
Re: S.B. 21 (Patriotic Education)
Dear Governor Leavitt:
The American Civil Liberties Union of Utah urges you to veto S.B. 2 1. While we support the goal of enhancing all students’ understanding of and respect for this country, its Constitution and its symbols, we believe provisions of this bill are unconstitutional and counterproductive.
S.B. 21 requires that the pledge of allegiance be recited at the beginning of the day in each elementary public school in the state and encourages its being recited once a week in the secondary schools. It further provides that students are to be advised of their right not to participate in reciting the pledge. Our primary objection to the enrolled bill, however, is the language in lines 27-28, which provides: "A student shall be excused from reciting the pledge upon written request from the student’s parent or legal guardian.” We are also concerned that the bill does not account for a teacher’s right not to participate in the mandatory pledge ceremony. A better approach, which the legislature could pursue next year, is to limit the statute to the provisions that require instruction on the matters set forth in 36 U.S.C 170 to 177, which describe the patriotic customs associated with the playing of the national anthem and the manner of delivery of the pledge, but do not require any individual to observe the custom
More than 40 years ago, the United States Supreme Court held that the government cannot coerce students to affirm their loyalty to the United States. Speaking with great eloquence, the Court held that: "National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion ... is a permissible means for its achievement.” West Virginia State Board of Education v. Barnette. The court recognized an individual right of conscience for everyone, including students, to sit silently during the pledge of allegiance. Barnette and its progeny make clear it is not for the parent or guardian to grant permission to decline to participate, but for each student to decide.
Court precedents and statutes aside, the First Amendment gives all Americans a right to express their opinion on legitimate public policy matters. That implies also a right not to express opinions they do not believe, even on matters that go to the core of our democratic principles. As the Supreme Court has said: "Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. 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.” Those principles are fully in force when someone chooses, as a matter of sacred conscience, not to recite the pledge because he or she does not believe, for example, that America has achieved its ideal of ensuring "liberty and justice for all.”
Installing patriotic ideals in our youth is a noble objective. But it is ironic and counterproductive if, seeking to accomplish that objective, we ignore the fundamental principles in the Constitution. The ACLU urges you to veto S.B. 21 and to encourage instruction that is more in line with America’s constitutional values.
Thank you for your consideration.