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FRAIN v. BARON

December 10, 1969

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



The opinion of the court was delivered by: JUDD

MEMORANDUM AND ORDER

 JUDD, District Judge.

 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 "home-rooms" 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, P 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 home-rooms 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 conclude 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 ...


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