Legal Question Of The Week - October 26, 2012

By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The "Legal Question of the Week" is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to:

Dear Legal Mailbag:

At my school, we have our teachers lead the Pledge of Allegiance every morning. As I was doing my rounds the other day, I was shocked to see that one of my third grade teachers had one of her students leading the Pledge (imperfectly I might add), while she stood mute. I told her to report to my office at the end of the day, which she did. She explained that she did not think that our country had liberty and justice for all, and she said it would be hypocritical of her to say the Pledge personally. I reminded her that she is a non-tenure teacher and that she should not take herself and her feelings so seriously. She seemed shaken by our conversation, but I was quite surprised that she just told me that she would think about it. Can I write her a no-nonsense letter telling her that any future failure to say the Pledge personally will be considered insubordinate?

King of the Castle

Dear King:

Maybe you shouldn’t take your own feelings so seriously. When the United States Supreme Court decided the seminal case of Tinker vs. Des Moines Independent School District, it famously stated in 1969 that it can’t be argued that “either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” To be sure, when teachers are doing their jobs, they do not have free speech rights. Here, however, the teacher had figured out a way to accommodate her personal views while still assuring that students could say the Pledge without her. Thus, it appears that you picked a fight unnecessarily, and if you ever move not to renew this teacher, she may well argue that your decision was in retaliation for her exercise of free speech rights. How does “test case” sound to you?