D e s e r t E x p o s u r e
August 2009
Freedom Summer
Paying what's due to the Bill of Rights.
It's been a good summer for the Bill of Rights here in the Southwest. First, the state Public Education Department quietly proposed an update to its rules to let New Mexico students opt out of reciting the Pledge of Allegiance in school every morning. Although many school districts throughout the state already allow students to choose not to say the pledge, official state policy mandates it. The proposed administrative change would add, "Any person not wishing to participate in the recitation of the Pledge of Allegiance shall, without consequence or retaliation, be exempted from reciting it and need not participate." Since mandating the pledge has sparked countless court battles, this sensible change could spare the state future lawsuits. It's also respectful of those, such as the Jehovah's Witnesses, who believe that "pledging allegiance" to the flag — or any other object — is a form of idolatry.
In 1940--before the "under God" phrase was tacked on, making the mandatory recitation of the pledge even more constitutionally questionable--a group of Jehovah's Witnesses challenged a school pledge requirement. The case went all the way to the US Supreme Court, which voted eight to one that the Jehovah's Witnesses' freedom of religion was secondary to the national need for unity and patriotism.
Then the Court and the nation got a lesson in the consequences of overriding individual conscience. Emboldened by the ruling, mobs engaged in more than 300 physical attacks on Jehovah's Witnesses. According to the First Amendment Center, these included "an assault in Richwood, WV, where the sheriff had nine Witnesses tied together and placed before a flagpole. A mob surrounded the group, recited the Pledge of Allegiance, and spat on the victims before driving them out of town."
These horrific examples of the "tyranny of the majority" prompted the Court to reverse itself. In 1943, the justices ruled that government may not compel students to say the Pledge of Allegiance. As Kenneth A. Paulson, executive director of the First Amendment Center, observes, "It was a victory for the Jehovah's Witnesses, freedom of religion and freedom of speech. It also carved out a reasonable middle ground. America's schools could still recite the pledge, but students who objected could opt out. What could be more American than that?"
Before any self-appointed superpatriots get worked up about how vital it is to have sleepy schoolchildren mumble an incantation every morning, another little history lesson is in order. The Pledge of Allegiance appears nowhere in the Declaration of Independence, Constitution or other document of the Founding Fathers. America somehow got through the Civil War without having a pledge.
Indeed, those who fulminate about America sliding headlong into "socialism" ought to be at the head of the class, protesting the "socialist" Pledge of Allegiance. It was penned in 1892 by Francis Bellamy (1855-1931), a noted "Christian socialist" and cousin of socialist utopian novelist Edward Bellamy (Looking Backward). The pledge was published in Youth's Companion magazine as part of the 400th anniversary celebration of Columbus' voyage to the New World — a celebration seized upon by the magazine publisher's nephew to promote the sale of flags to schools.
Francis Bellamy's original pledge read, "I Pledge Allegiance to my Flag and the Republic for which it stands, one nation indivisible with liberty and justice for all." He intended it to be accompanied with an unfortunate arm-extended salute that later resembled the Nazi "Heil Hitler!" salute a tad too closely; FDR directed that a hand-on-heart salute be substituted. Congress didn't make the pledge — by then tweaked so immigrants would be clear which flag and republic they were pledging to — official until 1942.
From a literary and historical standpoint, in short, mandating the pledge is roughly the equivalent of requiring schoolchildren to recite "Twas the Night Before Christmas" during the holidays.
The pledge was further amended during the height of McCarthy-era hysteria over "godless Communism" in 1954. Groups such as the Knights of Columbus pressed for the addition of "under God" to the pledge, and President Dwight Eisenhower (ironically, reared as a Jehovah's Witness) concurred. When he signed the change, Eisenhower proclaimed, "from this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty."
In recognizing that not every New Mexican proclaims the same dedication to the same Almighty — or to any god at all — and that some religions actually forbid pledging to a flag, the Public Education Department is taking a thoughtful and common-sense step toward insuring "liberty and justice for all."
The second piece of Bill of Rights good news also involves schools, and came from the current Supreme Court, ruling in a case involving a 13-year-old girl in Safford, Ariz. By an eight-to-one majority, the Court held that Safford school officials violated Savana Redding's Fourth Amendment rights in 2003 when she was strip-searched after a fellow student said she had prescription-strength ibuprofen.
The case sounds so outrageous that it's hard to imagine it went all the way to the Supreme Court. Put yourself in the position of young Savana's mother, who initiated the lawsuit: On the unsubstantiated say-so of another middle-school child, the authorities ordered your 13-year-old daughter to strip to her bra and panties and rooted around for a headache pill. Lawsuit? Safford school officials are lucky Savana's dad didn't come calling with a baseball bat.
The girl wasn't accused of hiding an illegal drug, and (as the Court noted) there was no legitimate reason for believing she was concealing anything in her underwear. A strip search, Justice David Souter wrote in one of his final opinions, is far more intrusive than searching a student's locker or backpack, especially involving someone whose "adolescent vulnerability" magnifies the intrusion. It was an "embarrassing, frightening and humiliating search," Justice Souter concluded.
The only bad news is that the Court held the school officials should be immune from liability for damages, because of the prior uncertain state of the law in such cases. Common sense should dictate that a violation of personal dignity as extreme as strip-searching should be reserved for equally extreme cases. Indeed, many schools, as Justice Souter noted, have "decided that strip searches in schools are never reasonable and have banned them no matter what the facts might be."
Justice Ruth Bader Ginsburg said of her all-male colleagues, "They have never been a 13-year-old girl. It's a very sensitive age for a girl. I don't think that my colleagues, some of them, quite understand."
Among the most clueless of her colleagues, not surprisingly, was Justice Clarence Thomas, the lone vote against Savanna Redding. In dissent, he wrote, "Preservation of order, discipline and safety in public schools is simply not the domain of the Constitution."
As students throughout the nation's Southwest prepare to go back to school this month, it's perhaps a good time to be reminded that — Justice Thomas' predictably ill-conceived opinion notwithstanding--nowhere in the Constitution are schoolchildren exempted from the protections of the Bill of Rights. And when, each morning, most--but not all--New Mexico students recite the Pledge of Allegiance, even that latterday patriotic confection promises liberty and justice not just for adults or Christians or self-proclaimed patriots, but for all Americans.
David A. Fryxell is editor of Desert Exposure.