Bill would remove penalties for not reciting Pledge of Allegiance and saluting flag

Posted on 02-22-2021


DOVER — It may have been a while since you were in school, but you probably remember the Pledge of Allegiance. For students, the pledge quickly becomes part of a daily ritual, something generally performed without a second thought.

But did you know that Delaware students who decline to salute the American flag and recite the pledge could face punishment from the school?

Furthermore, teachers who don’t require their pupils to take part in the brief ceremony are risking an even more severe penalty — jail time.

A bill filed Friday would change that.

House Bill 107 would strike from state code language mandating students and teachers “salute and pledge allegiance to the American flag,” something found unconstitutional by the U.S. Supreme Court in the 1943 case West Virginia State Board of Education v. Barnette.

Delaware law mandates the daily loyalty oath, even allowing for a $50 fine or a prison sentence of up to 10 days for teachers who exempt their charges from the activity.

The bill was introduced by Rep. Paul Baumbach, a Newark Democrat, after a constituent was forced to recite the pledge in school.

After some research, he determined the law is indeed in violation of the U.S. Constitution, prompting the legislation.

“I have to say, it’s been enough years that there’s little in the Delaware code that surprises me … so it doesn’t really blow me away,” he admitted, while describing the law still being on the books as “disappointing.”

Though it’s unclear how often this law may be invoked — there probably aren’t many teachers languishing in prison for refusing to take or for making their students recite the pledge — Rep. Baumbach sees no reason to keep it.

Nonetheless, he said he wouldn’t be surprised if the bill faces some objection in the legislature, pointing to the nation’s politically polarized atmosphere.

Indeed, four Delaware Republicans voted against the state Senate rules last month because a long-standing provision mandating that people in the Senate chamber salute the flag was removed.

In the 1943 court decision, Justice Robert Jackson, writing for the majority, opined, “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.”

The bill, which has only Democratic co-sponsors, has been assigned to the House Education Committee.

Other bills

Also filed Friday were, among others, proposals to make the University of Delaware and Delaware State University subject to public disclosure laws (they currently have special exemptions, and UD in particular has resisted claims it should be held to the same standard as state agencies), to increase a senior property tax credit from $400 to $500 and to make the endangered green sea turtle (Chelonia mydas) the state reptile for the next year.

According to the Marine Education, Research & Rehabilitation Institute, “A variety of endangered sea turtles find their way onto Delaware beaches each and every year,” including, in 2011, the first recorded green sea turtle nesting here.

The full General Assembly, which has been on break since the end of January, returns March 9.

Reflection from Dover Councilman David Anderson: 

“I respect the intention behind this bill, but not the bill.  HB 107 should provide a conscience exemption for saying the pledge and allow people to stand silently or excuse themselves.  That I could agree with wholeheartedly.  We do not force oath of loyalties in this country.  So what is my issue with this bill?

As usual, it goes too far.  It removes the requirement that schools have students and teachers start the day with the pledge and seems to remove the requirement the state supplies flags free of charge to the school districts.  Students can have an opportunity and people can participate, stand silently or SIT.  Do you really want to tear down one of the few remaining rituals that brings us together as a people?  Opportunity is what someone saying the pledge over the intercom system while people pledge, sit or whatever?  Part of education is instilling moral and civic responsibility into children.  It is the process of civilization.  The more we tear that down, the less civil our society becomes.  We took out prayer and Bible reading and our society has been far worse for it by any civil measure. The pledge is one of the few items remaining that binds us together over civil ritual.  It is shared by people of all faiths, ethnicities, class statuses, all 32 genders (for Rep. Bambach, Rep. Morrison, and Senator McBride –sponsors). both sexes, immigrant and native, disabled or not, all join as one people in our national mission statement.  Any organization benefits from one and it benefits most if the members of it internalize it.  How is that less true of a great nation?”