Landmark Supreme Court Case: West Virginia State Board of Education v. Barnette (1943)

by Kwaisi France · August 10, 2020

West Virginia State Board of Education v. Barnette (1943) is the 86th landmark Supreme Court case, fifth in the Education module, featured in the KTB Prep American Government and Civics series designed to acquaint users with the origins, concepts, organizations, and policies of the United States government and political system. The goal is greater familiarization with the rights and obligations of citizenship at the local, state, national, and global levels and the history of our nation as a democracy. While there is overlap, these landmark cases are separated into cases addressing:

The Supreme Court

The Supreme Court is the highest court in the United States. Article III of the U.S. Constitution created the Supreme Court and authorized Congress to pass laws establishing a system of lower courts. The Constitution elaborated neither the exact powers and prerogatives of the Supreme Court nor the organization of the Judicial Branch as a whole. Thus, it has been left to Congress and to the Justices of the Court through their decisions to develop the Federal Judiciary and a body of Federal law.

The number of Justices on the Supreme Court changed six times before settling at the present total of nine in 1869. Since the formation of the Court in 1790, there have been only 17 Chief Justices* and 102 Associate Justices, with Justices serving for an average of 16 years. On average a new Justice joins the Court almost every two years.

The Supreme Court of the United States hears about 100 to 150 appeals of the more than 7,000 cases it is asked to review every year. That means the decisions made by the 12 Circuit Courts of Appeals across the country and the Federal Circuit Court are the last word in thousands of cases.

Court of Appeals

In the federal court system’s present form, 94 district level trial courts and 13 courts of appeals sit below the Supreme Court. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals. The appellate court’s task is to determine whether or not the law was applied correctly in the trial court. Appeals courts consist of three judges and do not use a jury.

The appellate courts do not retry cases or hear new evidence. They do not hear witnesses testify. There is no jury. Appellate courts review the procedures and the decisions in the trial court to make sure that the proceedings were fair and that the proper law was applied correctly.

A court of appeals hears challenges to district court decisions from courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws, and cases decided by the U.S. Court of International Trade and the U.S. Court of Federal Claims.

District Courts

The nation’s 94 trial courts are called U.S. District Courts. At a trial in a U.S. District Court, witnesses give testimony and a judge or jury decides who is guilty or not guilty — or who is liable or not liable. District courts resolve disputes by determining the facts and applying legal principles to decide who is right.

Trial courts include the district judge who tries the case and a jury that decides the case. Magistrate judges assist district judges in preparing cases for trial. They may also conduct trials in misdemeanor cases.

There is at least one district court in each state, and the District of Columbia. Each district includes a U.S. bankruptcy court as a unit of the district court.

Bankruptcy Courts

Federal courts have exclusive jurisdiction over bankruptcy cases involving personal, business, or farm bankruptcy. This means a bankruptcy case cannot be filed in state court. Bankruptcy Appellate Panels (BAPs) are 3-judge panels authorized to hear appeals of bankruptcy court decisions. These panels are a unit of the federal courts of appeals, and must be established by that circuit. Five circuits have established panels: First Circuit, Sixth Circuit, Eighth Circuit, Ninth Circuit, and Tenth Circuit.

West Virginia State Board of Education v. Barnette (1943)

Barnette Facts:

In the 1930s, the government of Nazi Germany began arresting thousands of Jehovah’s Witnesses who refused to salute the Nazi flag and sent them to concentration camps. Jehovah’s Witnesses teach that the obligation imposed by the law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says:

Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.

They consider that the flag is an ‘image’ within this command. For this reason, they refused to salute the flag.

In the United States, children of Jehovah’s Witnesses had been expelled from school and were threatened with exclusion for no other cause. Officials threatened to send them to reformatories maintained for criminally inclined juveniles. Parents of such children had been prosecuted and were being threatened with prosecutions for causing delinquency.

In 1935, 9-year-old Carlton Nichols was expelled from school and his father arrested in Lynn, Massachusetts, for such a refusal. Additional refusals followed, one such leading to Minersville School District v. Gobitis (1940). Even after the Gobitis decision, Jehovah’s Witnesses continued to refuse to say the pledge.

Following the Gobitis decision, the West Virginia Legislature amended its statutes to require all schools in the state to conduct courses of instruction in history, civics, and in the Constitutions of the United States and of the State:

for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of the government.

The West Virginia State Board of Education was directed to “prescribe the courses of study covering these subjects” for public schools.

The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely from the Court’s Gobitis opinion and ordering that the salute to the flag become “a regular part of the program of activities in the public schools”, that all teachers and pupils:

shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly.

The resolution originally required the “commonly accepted salute to the Flag” which it defined. Objections to the salute as “being too much like Hitler’s” were raised by a variety of organizations, including the Parent and Teachers Association, the Boy Scouts and Girl Scouts, the Red Cross, and the General Federation of Women’s Clubs. Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah’s Witnesses. What was required after the modification was a “stiff-arm” salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: “I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation indivisible, with liberty and justice for all.

Failure to comply was considered “insubordination” and dealt with by expulsion. Readmission was denied by statute until the student complied. This expulsion, in turn, automatically exposed the child and their parents to criminal prosecution; the expelled child was considered “unlawfully absent” and could be proceeded against as a delinquent, and their parents or guardians could be fined as much as $50 and jailed up to thirty days.

Marie and Gathie Barnette were Jehovah’s Witnesses attending Slip Hill Grade School near Charleston, West Virginia, who were instructed by their father not to salute the flag or recite the pledge, and were expelled for their refusal. On the advice of an early attorney, Mr. Horace S. Meldahl of Charleston, the Barnetts had avoided the further complications by having their expelled girls return to school each day, though the school would send them home. The Barnetts brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah’s Witnesses, and prevailed, with the three-judge panel stating:

Ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not. … The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority.

The school district subsequently appealed.

Barnette Legal Questions and Answers

Q: Did the compulsory flag-salute for public schoolchildren violate the First Amendment?

A: Yes. Compelling school children to salute the flag violates freedom of speech protected by the First Amendment.

Barnette Conclusion

6-3 decision ruling the Free Speech clause of the First Amendment prohibits public schools from forcing students to salute the American flag and say the Pledge of Allegiance. District Court affirmed.

The Court overruled its decision in Minersville School District v. Gobitis (1940) and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that the First Amendment cannot enforce a unanimity of opinion on any topic, and national symbols like the flag should not receive a level of deference that trumps constitutional protections. Curtailing or eliminating dissent was an improper and ineffective way of generating unity.

The majority opinion in Barnette is considered one of the Court’s greatest and most sweeping statements about the fundamental freedoms established by the Bill of Rights. After Barnette the Court began to turn away from the belief-action doctrine altogether, creating a religious exemption for believers of different creeds. In Sherbert v. Verner (1963), for example, the Court upheld a Seventh-day Adventist’s claim to unemployment benefits even though she declined to make herself available to work on Saturday (her Sabbath) as the law required. In Wisconsin v. Yoder (1972), the Court upheld the right of Amish parents not to send their children to public schools past the eighth grade.

It was a significant court victory won by Jehovah’s Witnesses, whose religion forbade them from saluting or pledging to symbols, including symbols of political institutions. However, the Court did not address the effect the compelled salutation and recital ruling had upon their particular religious beliefs but instead ruled that the state did not have the power to compel speech in that manner for anyone. In overruling Gobitis the Court primarily relied on the Free Speech Clause of the First Amendment rather than the Free Exercise Clause.

Foundation for Individual Rights in Education on West Virginia State Board of Education v. Barnette (1943)

Next Education Case: Everson v. School Board of Education (1947)

Previous Education Case: Minersville v. Gobitis (1940)

Next Case: Korematsu v. US (1944)

Previous Case: Hirabayashi v US (1943)

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