Anyone who has been on Facebook in the last year or so likely came across a meme comparing Colin Kaepernick's protest of kneeling during the national anthem before football games to a 1943 Supreme Court decision finding it unconstitutional to require Jehovah's Witnesses to stand and salute the flag during the Pledge of Allegiance. I teach that decision, West Virginia State Board of Education vs. Barnette, in my First Amendment course.

As a law professor, when I see this meme, I cannot resist the teaching moment. Invariably, I post a comment about how the Barnette decision does not apply to Kaepernick's protest because the National Football League and its owners are not state actors. In other words, the Constitution, including the First Amendment, only applies to governments whether they be federal, state or local, but does not apply to the NFL because it is a private organization.

Recently, in a move garnering national attention, Texas Attorney General Ken Paxton joined a federal civil rights lawsuit involving India Landry, a 17-year-old high school student. Her public high school expelled Landry for refusing to stand during the Pledge of Allegiance. The Texas Education Code mandates that schools "require students, once during each school day at each campus" to say the Pledge of Allegiance. However, there is also a provision that enables students to be excused from this obligation if there is a "written request from a student's parent or guardian." Landry has her mother's support in refusing to recite the pledge.

Landry described her decision to refuse to stand as a silent protest because she believes the flag is a flawed symbol that fails to represent liberty and justice. Her English teacher sent her to the principal's office several times during the fall of 2017 when she refused to stand for the pledge. The final episode in the principal's office resulted in Landry's expulsion after she refused to stand again. Specifically, the principal told Landry that "this isn't the NFL." Moreover, the high school's assistant principal informed her that Landry would have "to stand for the Pledge of Allegiance like other African-Americans in her class."

After intervening in the lawsuit, in a released statement, Paxton argued that "school children cannot unilaterally refuse to participate in the pledge." He further said, "This case is about providing for the saying of the Pledge of Allegiance while respecting the parental right to direct the education of children." Possibly there is some election grandstanding with his intervention, but that is for the Texas voters to decide.

There are a couple of problems with Paxton's approach as a constitutional matter. First, Landry's school, Windfern High School in the Cypress-Fairbanks Independent School District, is a public school. Thus, the decisions by school officials to punish Landry constitute state action, which triggers the application of the First Amendment.

In Barnette, the education board adopted a resolution requiring schoolchildren to extend their right arms, palms upward, and recite the Pledge of Allegiance to the flag as well as the United States. A failure to salute the flag was deemed to be an act of insubordination resulting in the student being expelled from school. Moreover, their parents were subject to prosecution because the expelled children were deemed to be unlawfully absent from school in violation of state law. The Barnettes were Jehovah's Witnesses whose faith barred them from swearing allegiance to the flag.

The Supreme Court determined that the salute constituted a form of utterance and a means of communicating ideas. Indeed, a government cannot compel individuals to engage in compulsory, involuntary expression because mandating the holding of a specific opinion violates the First Amendment. "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."

This decision from 1943 is still good law and should apply to Landry's lawsuit. Paxton appears to argue that the Texas law is constitutional because it requires parental involvement. However, Barnette does not mandate that the parents approve of their children's protests that are sanctioned by the First Amendment.

Moreover, the Supreme Court has considered students' First Amendment rights within schools in the 1969 Tinker vs. Des Moines Independent Community School District decision. In that case, the school district suspended high school and middle school students who protested the Vietnam War by wearing black armbands to their schools in December 1965. The children and their parents filed an action asserting that the suspensions violated their First Amendment right to freedom of speech.

In Tinker, the Supreme Court ruled that the armbands represented pure speech as opposed to actions or conduct of those wearing them. Public school students do not lose their First Amendment rights to freedom of speech when they enter the school building. To constitutionally be able to suppress student speech, school officials must demonstrate that the conduct would "materially and substantially interfere" with the school's operation.

Instead, the school district's response resulted from just a fear about possible disruption, as opposed to any actual disruption. Similarly, Landry's speech is political in nature, which warrants heightened concern and protection. Moreover, there is no evidence that other than refusing to stand, Landry's actions were disruptive, or interfered with school operations.

In Barnette, the Supreme Court overturned its previous decision, Minersville School District vs. Gobitis, which had only three years earlier concluded that Jehovah's Witnesses students could be compelled to salute the American flag in violation of their religious beliefs. Almost 90 years later, Paxton seeks a return to that misguided approach to compel Landry and other students to engage in political speech. Let's hope that the federal court rejects Paxton's attempt to go back in time.

Brian Owsley is an assistant professor of law at UNT Dallas College of Law. He wrote this column for The Dallas Morning News.

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