Opinions of the Justices to the Governor

• Decision Date: 16 May 1977
• Citation: 372 Mass. 874,363 N.E.2d 251
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 251

363 N.E.2d 251

372 Mass. 874

OPINIONS OF THE JUSTICES TO THE GOVERNOR Supreme Judicial Court of Massachusetts.

May 16, 1977.

On May 16, 1977, the Justices submitted the following answer to questions propounded to them by the Governor.

To His Excellency, the Governor of the Commonwealth:

The undersigned Justices of the Supreme Judicial Court respectfully submit their answer to the first of two questions set forth in the request of the Governor dated April 27, 1977, for an advisory opinion relating to a bill, house No. 5627, pending before him. ¹ A copy of the bill was transmitted with the request. The bill is entitled, 'An Act requiring recitation of the pledge of allegiance to the lag in all public schools at the commencement of class each day.' In his request the Governor states that he has grave doubts as to the constitutionality of the bill.

The bill would amend G.L. c. 71, § 69, by striking out the fourth sentence, as appearing in St. 1935, c. 258, and inserting in place thereof the following sentence: 'Each teacher at the commencement of the first class of each day in all grades in all public schools shall lead the class in a group recitation of the 'Pledge of Allegiance to the Flag."

The questions are:

'1. Would the enactment of H. 5627, coupled with a fine for non-compliance under the sixth sentence of G.L. c. 71, § 69, be an unconstitutional infringement of teachers' rights under either the First Amendment of the Constitution of the United States or Articles 2 or 16, Part the First, of the Massachusetts Constitution?

'2. Would the enactment of H. 5627 be an unconstitutional infringement of students' rights under either the First Amendment of the Constitution of the United States, or Articles 2 or 16, Part the First, of the Massachusetts Constitution?'

General Laws c. 71, § 69, as proposed to be amended would read as follows (with the amending language emphasized): 'The school committee shall provide for each schoolhouse under its control, which is not otherwise supplied, flags of the United States of silk or bunting not less than two feet long, such flags or bunting to be manufactured in the United States, and suitable apparatus for their display as hereinafter provided. A flag shall be displayed, weather permitting, on the school building or grounds on every school day and on every legal holiday or day proclaimed by the governor or the president of the United States for especial observance; provided, that on stormy school days, it shall be displayed inside the building. A flag shall be displayed in each assembly hall or other room in each such schoolhouse where the opening exercises on each school day are held. Each teacher at the commencement of the first class of each day in all grades in all public schools shall lead the class in a group recitation of the 'Pledge of Allegiance to the Flag.' ² A flag shall be displayed in each 1. The questions which have been asked arise in a somewhat unusual context because constitutional problems which are apparent in the proposed amendment to G.L. c. 71, § 69, are present in § 69 as it now exists. In fact, the proposed amendment may rectify at least one possible unconstitutional aspect of § 69 as now enacted. If § 69 were to be amended as proposed by House No. 5627, the criminal penalty provided in the sixth sentence of § 69 may be inapplicable to a teacher who does not lead his class in a group recitation of the pledge of allegiance. The sixth sentence of § 69 provides a penalty for a teacher who fails for a period of two consecutive weeks 'to salute the flag and recite said pledge' (emphasis supplied) or who fails 'to cause the pupils under his charge so to do.' Because the proposed amendment eliminates the requirement of a salute to the flag, the penalty of the sixth sentence literally would be inapplicable to a teacher who fails to lead his class in a group recitation of the pledge of allegiance to the flag. Such a construction might be warranted because a criminal statute must be construed strictly so that any ambiguity will be resolved in favor of the defendant. See Commonwealth v. Devlin, 366 Mass. 132, 137--138, 314 N.E.2d 897 (1974); Maria v. State Examiners of Electricians, 365 Mass. 551, 554, 313 N.E.2d 448 (1974).

classroom in each such schoolhouse. Failure for a period of five consecutive days by the principal or teacher in charge of a school equipped [372 Mass. 876] as aforesaid to display the flag as above required, or failure for a period of two consecutive weeks by a teacher to salute the flag and recite said pledge as aforesaid, or to cause the pupils under his charge so to do, shall be punished for every such period by a fine of not more than five dollars. Failure of the committee to equip a school as herein provided shall subject the members thereof to a like penalty.' ³

If, contrary to the assumption of the first question asked us, the proposed amendment removes criminal penalties against noncomplying teachers, the proposed amendment nevertheless contains a direction that each teacher lead the first class of each day in a recitation of the pledge of allegiance to the flag. Failure to adhere to this mandate may threaten the continuance or advancement of a teacher's career. It is difficult to conclude that the Legislature intended House No. 5627 to have no effect. We shall, therefore, answer the first question on the assumption that there is an element of compulsion on a teacher inherent in the mandate of the proposed amendment to § 69. Even if we were to determine that it would be unconstitutional to visit any adverse consequences on a teacher for his failure to comply with the amendment, the very existence of the statutory mandate might inhibit a teacher from exercising whatever constitutional right he may have to refrain from leading his class in the recitation of the pledge of allegiance. Indirect discouragement of the exercise of First Amendment rights has been condemned. The Supreme Court of the United States observed in Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972) that '(i)n recent years this Court has found in a number of cases that constitutional violations may arise from the deterrent, or 'chilling,' effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. E.g., Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); Baggett v. Bullitt, 377 U.S. 360, 84 The Supreme Court of the United States has not had an occasion to consider whether a teacher has a constitutional right to decline to participate in the recitation of the pledge of allegiance to the flag in circumstances where a statute or other directive purports to require his participation. In West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), the Supreme Court held that a requirement that a student recite the pledge of allegiance to the flag and salute the flag, under the threat of expulsion for failure to comply, unconstitutionally violated the rights of a student who objected to the requirement on religious grounds. In reaching its conclusion, the Supreme Court did not express its views solely in terms of persons objecting on religious grounds but rather invalidated the requirement on broad First Amendment principles. That Court said, '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. If there are any circumstances which permit an exception, they do not now occur to us (footnote omitted).

S.Ct. 1316, 12 L.Ed.2d 377 (1964).' We, therefore, turn to the question whether a teacher has a constitutional right to decline to comply with a mandate such as is contained in the proposed amendment.

'We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.' Id. at 642, 63 S.Ct. at 1187.

In our view, the rationale of the Barnette opinion applies as well to teachers as it does to students. Other courts have relied on the Barnette decision in holding that provisions requiring teachers to lead their classes in daily recitations of the pledge of allegiance violate the First Amendment rights of teachers. See Russo v. Central School Dist. No. 1, 469 F.2d 623, 63---634 (2d Cir. 1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 N.E.2d 391 (1973); Hanover v. Northrup, 325 F.Supp. 170 (D.Conn. 1970); State v. Lundquist, 262 Md. 534, 554--555, 278 A.2d 263 (1971). The Supreme Court of the United States has said that teachers do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).

The Court's basic reasoning in its decision in the Barnette case makes fruitless any attempt to rely on any features of House No. 5627 which may distinguish it from the West Virginia resolution involved in the Barnette case. The purpose of fostering expression of patriotic views is apparent in both measures. Although most citizens find affirmation of the patriotic sentiments contained in the pledge of allegiance unobjectionable, the teaching of the Barnette decision is clear. Any attempt by a governmental authority to induce belief in an ideological conviction by forcing an individual to identify himself intimately with that conviction through compelled expression...