West Virginia State Board of Education V. Barnette - Facts of The Case

Facts of The Case

Following the Minersville School District v. 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 the Parent and Teachers Association, the Boy 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. On the advice of an early attorney, the Barnettes had avoided the further complications by having their expelled girls return to school each day, though the school would send them home.

The Barnettes 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. The Witnesses taught and still teach that the obligation imposed by 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. 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.