Frain v. Baron

• Decision Date: 10 December 1969
• Docket Number: 1347.,No. 69-C-1250,69-C-1250
• Citation: 307 F. Supp. 27
• Parties: Mary FRAIN, a minor under the age of 21 years, by her mother, Maryalice Frain, and Susan Keller, a minor under the age of 21 years, by her mother, Caroline D. Keller, Plaintiffs, v. Harold BARON, individually and as Principal of Junior High School 217Q, and Hugh McDougall, individually and as District Superintendent of District 28, New York Board of Education, Defendants. Raymond MILLER, a minor under the age of 21, by his mother, Earline Miller, Plaintiff, v. Louis SCHUKER, individually and as Principal of Jamaica High School, Max Rubinstein, individually and as District Superintendent of District 29, New York Board of Education, and Nathan Brown, individually and as acting Superintendent of Schools for New York City, Defendants.
• Court: U.S. District Court — Eastern District of New York

307 F. Supp. 27

Mary FRAIN, a minor under the age of 21 years, by her mother, Maryalice Frain, and Susan Keller, a minor under the age of 21 years, by her mother, Caroline D. Keller, Plaintiffs, v. Harold BARON, individually and as Principal of Junior High School 217Q, and Hugh McDougall, individually and as District Superintendent of District 28, New York Board of Education, Defendants.

Raymond MILLER, a minor under the age of 21, by his mother, Earline Miller, Plaintiff, v. Louis SCHUKER, individually and as Principal of Jamaica High School, Max Rubinstein, individually and as District Superintendent of District 29, New York Board of Education, and Nathan Brown, individually and as acting Superintendent of Schools for New York City, Defendants.

Nos. 69-C-1250, 1347.

United States District Court E. D. New York.

December 10, 1969.

Paul G. Chevigny, N. Y. Civil Liberties Union, New York City, for Susan Keller, Caroline D. Keller and Earline Miller.

Hendler & Siegel, New York City, for Mary Frain and Maryalice Frain; by Samuel I. Hendler, New York City, of counsel.

J. Lee Rankin, Corp. Counsel, New York City, for defendants; by Robert E. Hugh, Asst. Corp. Counsel, of counsel.

JUDD, District Judge.

MEMORANDUM AND ORDER

These civil rights actions are significant because they pit popular ideas of patriotism and the authority of school administrators against students' rights of free expression. The particular controversy is minor, involving the refusal of three students to leave their "homerooms" during the daily Pledge of Allegiance, as a condition for exercising their undoubted constitutional right not to participate in the Pledge. The resulting collision is serious, because it involves suspension from school as one alternative, and a court injunction against the school authorities as the other.

The facts and legal authorities must be reviewed in the light of the principle that:

"It is now beyond dispute that the constitution goes to school with the student and that the state may not interfere with the student's enjoyment of its presence." Denno, Mary Beth Tinker Takes the Constitution to School, 38 Fordham L.Rev. (1969) 35, 56.

Facts

The Pledge of Allegiance was written by Frances Bellamy, a Baptist minister, to be used at the Chicago World's Fair Grounds in October, 1892, on the four hundredth anniversary of the discovery of America. Its present form, as set forth in Regulations of the New York Commissioner of Education (Art. XVI, § 150, ¶ 5) and in the United States Code (36 U.S.C. § 172) is:

"I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all."

The words "under God" were added in 1954 (Pub.L. 83-297). The Corporation Counsel has recognized in an earlier case that anyone may be excused from repeating these two words. See Matter of Superintendent of Schools v. Seymour Jacobs, a Regular Teacher of French, Report of Bethuel L. Webster as Trial Examiner, p. 5 (1968).

The Commissioner of Education is required by statute to prepare a program for a daily salute and pledge of allegiance to the flag. Education Law § 802, McKinney's Consol.Laws, c. 16, subd. 1. The By-Laws of the New York City Board of Education require a salute to the flag only once a week (Sec. 90, subd. 31), but a Circular from the Superintendent of Schools in 1963 directed that:

"at the commencement of each school day, the Pledge of Allegiance to the Flag be followed by the singing in unison of a patriotic song."

The purpose of the ceremony is to encourage patriotism and loyalty to democratic institutions.

Plaintiffs Mary Frain and Susan Keller are twelve-year old white girls attending Junior High School 217Q, in an accelerated class which does three years' work in two years.

Plaintiff Raymond Miller is a black boy, a senior at Jamaica High School.

All three plaintiffs refused to recite the Pledge of Allegiance, because of a belief that the words "with liberty and justice for all" are not true in America today. One is an atheist, who also objected to the words "under God."

They refused to stand during the Pledge, because that would constitute participation in what they considered a lie. They also refused to leave the room, and stand in the hall outside their homerooms until the conclusion of the ceremony, because they considered exclusion from the room to be a punishment for their exercise of constitutional rights.

It does not appear whether any plaintiff joined in the required patriotic song, or whether they were required to stay in the hall during the singing as well as the Pledge.

Plaintiff Miller was required to submit to the Assistant Principal for Guidance a written statement of his reasons for not saluting. His typewritten statement, in one page, expresses the belief that "America is perhaps the greatest country in the world," but that it must undergo certain basic changes, and provide true equality, freedom and justice for all, end oppression of minorities, and give black people a greater opportunity to advance. He concluded that:

"As for the pledge: I believe it is untrue (`Liberty and justice for all') and I refuse to swear to a lie."

Mary Frain and Susan Keller are the remnant of a larger group who previously sat in silence during the Pledge of Allegiance. The others, after being summoned to the Principal's office to discuss their conduct, accepted one of the alternatives, of standing silently or going outside their classrooms during the Pledge. The papers do not show what supervision, if any, is provided in the halls while the non-participating students are excluded from class.

The policy of requiring a non-participating student to leave the area in which the flag salute is taking place was adopted by the Superintendent of Schools in March, 1969, in granting a petition from a student at Jamaica High School to be excused from taking part. The Superintendent stated:

"This decision is based on rulings by the United States Supreme Court and more recently by a Trial Examiner designated by the Board of Education, that both pupils and teachers have a right, as a matter of conscience, to refuse to salute the flag and recite the Pledge of Allegiance. I believe that no pupil should be permitted to sit during such a ceremony, since to do so might create disorder."

Raymond Miller asserts that he was nevertheless permitted to remain seated from March to October, when the publicity about the Frain suit called attention to the matter. Defendants assert that he stood silently during this time, and was not observed to remain seated until October 17, 1969, when his conduct resulted in suspension. This minor dispute of fact does not require decision at this time.

Between October 10, when the Frain and Miller girls were returned to school under this court's temporary restraining order, and November 10, when the City's reply papers were submitted, fifty other students in Junior High School 217Q have also sat silently during the Pledge of Allegiance, on one or more occasions. There is no showing that this has caused any disorder.

For two months in 1967 a teacher in Far Rockaway High School remained seated during the Pledge of Allegiance and did not recite the Pledge. A special Trial Examiner for the Board of Education, in ruling on charges against the teacher, found that his conduct did not cause disorder in the classroom. Matter of Superintendent of Schools v. Jacobs, supra, at p. 8.

The principal of Jamaica High School asserts in an affidavit filed in this case that permitting a student to remain seated during the Pledge could be "a real and present threat to the maintenance of discipline" and would be "pedagogically foolhardy." Other school administrators echo these words. For the purpose of the pending motions, these conclusory assertions are insufficient to support a finding of serious harm to defendants from the granting of an injunction.

Both suits are brought as class actions. The court finds that the questions of law presented are common to a substantial number of students in public junior and senior high schools who wish to remain in their seats in silence during the Pledge of Allegiance; that the plaintiffs will fairly and adequately protect the interests of the class; and that defendants have acted on grounds generally applicable to the entire class. F.R. Civ.P. Rule 23(b) (2).

Legal Authorities

The thrust of recent decisions of the Supreme Court and lower federal courts has been toward increasing judicial concern with the clash between student expression and school authorities. This increasing concern has been accompanied by a shift in focus, well illustrated by comparing the Supreme Court's decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), overruling Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940), with the recent decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The original concern with limitation of the state's power to compel a student to act contrary to his beliefs has shifted to a concern for affirmative protection of the student's right to express his beliefs. The present case is novel in that the context, school patriotic exercises, is one in which courts have previously intervened to limit coerced participation, while these plaintiffs are urging not only a right of non-participation but a right of silent protest by remaining seated.

Barnette established the right of students to refrain from participation in a legislatively mandated flag ceremony. Rejecting compulsory participation as a proper vehicle for instilling patriotism, Mr. Justice Jackson stated (319 U.S. at 642, 63 S.Ct. at 1187):

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe

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