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Sunday, February 17, 2019

The continued relevance of Barnette (Updated)

In Lakeland, Florida.

Update, Monday, 2/18: More stories and details coming out about the arrest, including the Lakeland Police offering the following:

To be clear, the student was NOT arrested for refusing to participate in the pledge; students are not required to participate in the Pledge of Allegiance as noted in the Polk County School Board Code of Conduct for Students. This arrest was based on the student’s choice to disrupt the classroom, make threats and resisting the officer’s efforts to leave the classroom. The students name is not being released in accordance with Florida Public Record Laws regarding juveniles arrested for a misdemeanor.

But note the question-begging here. The Dean of Students and a police officer went to the classroom on a report of a disturbance and asked the student to leave, which he finally did after 20 requests; the student was arrested for disrupting a school function and resisting the officer. But the "disturbance" that triggered the initial classroom visit was created by the substitute teacher who argued with the student when he declined to recite the pledge. The Dean and the police removed the student from the classroom even though the teacher acted inappropriately, as the school recognized in asking the teacher to leave the school immediately.

There also is some blame-shifting and ass-covering between the school and the police. The school insists that it did not request an arrest or that charges be filed, that it merely discussed the code of conduct with the student and his family, and that it does not condone what the substitute teacher did. Meanwhile, the police are setting up a contempt-of-cop argument: The kid got lippy and resistant, justifying the arrest; it is not about the speech in which he engaged. This as we wait for SCOTUS to decide whether probable cause for some charges justifies retaliation for First Amendment conduct.

Posted by Howard Wasserman on February 17, 2019 at 02:38 PM in First Amendment, Howard Wasserman | Permalink


"Once a student is asked to leave the classroom, he or she simply has to comply, and certainly cannot respond with histrionics, regardless of whether the removal is just."

No, he doesn't. The student has a right to ask for an impartial school official to appeal to right then and there. Otherwise the teacher will never learn that they aren't God.

This is why every classroom needs at least one parent in it who isn't beholden to the teacher's union.

Posted by: Tinker | Feb 20, 2019 12:20:41 AM

Your natural right to be free of persecution for your speech or religious expression does not depend on the Constitution, much less on any laws? Indeed, you have the right to threaten violence if needed to secure your rights. King George III got the message (cf. Declaration of Independence)

The non-conforming kid acted well within his rights.

Posted by: Jimbino | Feb 19, 2019 12:59:28 PM

No, no, no. This is not question begging.

I taught high school for fifteen years. In that time, I had occasional disagreements with kids. Once in a while, that led to me asking the kid to leave the room. I was usually in the right, but sometimes I was in the wrong.

But that is irrelevant to the question of what had to happen if a kid refused to leave. Once a student is asked to leave the classroom, he or she simply has to comply, and certainly cannot respond with histrionics, regardless of whether the removal is just. A school simply cannot operate if students do not comply with teacher commands, even unreasonable ones. If the command is wrongful, then the remedy has to be after the fact, not in the moment.

Posted by: gdanning | Feb 19, 2019 12:33:16 PM

Do you really think asking a black kid to get parental permission to NOT act like all the white kids in class is really going to create a society of Malcolm X-like citizens that can resist an authoritarian dictator?

If blacks are unique and not part of a black borg, let them act like thinking independent individuals!

Posted by: Locutus | Feb 19, 2019 9:43:17 AM


Goetz v. Ansell (2nd Circuit, 1973)

But we do not believe that a silent, non-disruptive expression of belief by sitting down may similarly be prohibited.[9] While we do not share plaintiff's resistance to pledging allegiance to this nation, his reservations of belief must be protected.

Posted by: Kneeling during the pledge | Feb 19, 2019 9:26:04 AM

The word "triggered" is doing a lot of work there.

Posted by: Biff | Feb 18, 2019 7:58:22 PM

Wasserman,the case in Scotus ( Weight V. Bartlett) is irrelevant,for there,we deal with alleged retaliation of police officers after exercising first amendment right and directly due to it.But here,there is no nexus of such at all.For,as updated and even in the original report,no connection at all it seems ,between allegiance and the arrest.


Posted by: El roam | Feb 18, 2019 7:24:05 PM

Wasserman,the school has complied with the precedent itself,what may be wrong, is the way implied ( the precedent ) but not violation of the precedent itself. And according to the report,not because of the issue of allegiance to the flag,the kid has been arrested,but for allegedly threatening the teacher and more.The rest ,it is up to state legislation concerning guardianship and alike.Not the precedent.Maybe indeed wrongly trained (the teacher)maybe indeed should not have been arrested or detained ,but those are other issues.In sum,the precedent has been maybe wrongly implied, not beyond it.The school, has fully rejected it seems,the conduct of the teacher.


Posted by: El roam | Feb 18, 2019 7:14:59 AM

Just he who wants , can reach the ruling ( Barnette ) here :


He who prefers in Wikipedia,here:



Posted by: El roam | Feb 18, 2019 6:57:00 AM

The school's policies matter only up to a point. The student likely has a First Amendment claim against the teacher, who either was not properly trained or did not care about the student's First Amendment rights. As for a claim against the school, he might be able to show that the school took the teacher's side and arrested the student despite being aware, as officials clearly were, that the teacher had acted inappropriately.

Also, it is not entirely clear that a student's Barnette rights are satisfied by a parental-permission limitation. So the school may not be off the hook by saying the student lacked permission to opt-out.

Posted by: Howard Wasserman | Feb 18, 2019 6:56:04 AM

Just to make it clear :

As quoted by me, the school itself, was handling the situation, in accordance with the Barnette precedent (generally speaking). In Barnette, the school itself ( board of education ) by disciplining and sanctioning the child and his parents, has violated the first amendment. This is not the case here. For the school, absolutely rejected it.

The issue of parents and kids, is simply irrelevant. This is an issue of guardianship, not of flag and first amendment. This has to do with another issue(complicated by itself ) and it is in modern era, how autonomous a kid can be ( that's depends upon state legislation).But, in terms of Barnette and the flag and first amendment and directors of the school, no issue here it seems(if the report or related article, is correct in its presentation ).

So, we won't stay young here,by deviating from the core of the issue of course.


Posted by: El roam | Feb 18, 2019 6:25:32 AM

El Roam--

The bill of rights doesn't require parental approval. Can you imagine your parent having to approve your abortion? Disgusting!

Posted by: NARAL | Feb 17, 2019 6:16:32 PM

Interesting but not really relevant it seems.For I quote(from the related article):

The district handbook explicitly states that kids can opt out “upon written authorization from parent.”

And more concerning the handling of that teacher:

Unfortunately a substitute teacher was not aware of this. We are looking into this matter but this individual will no longer be allowed to substitute at any of our schools. Our HR department will contact Kelly Services (which provides our substitutes) to further refine how our substitutes are trained.”

So no one was really here compelled to stand for the Pledge of Allegiance it seems.Anyway he has been arrested for allegedly threatening the teacher and alike.


Posted by: El roam | Feb 17, 2019 3:49:26 PM

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