Delaware General Assembly

House Education 2/19/21 (Tabled in Committee)

The General Assembly has ended, the current status is the final status.

2/19/21

Baumbach

Rep. Morrison
Sen. S. McBride

Reps. Kowalko, Wilson-Anton
Sen. Pinkney, Sokola

AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO THE FIRST AMENDMENT RIGHTS OF PUBLIC SCHOOL STUDENTS.

In the 1943 decision West Virginia State Board of Education v. Barnette, 63 S. Ct. 1178, the U.S. Supreme Court held that a public school requirement that students salute the flag or face punishment violated the First Amendment of the Constitution because it compelled students to declare a belief. Under Barnette and similar decisions, current Delaware law, which requires teachers and students to salute and pledge allegiance to the American flag every morning is unconstitutional because it is coercive. State law requires teachers and students to “salute and pledge allegiance to the American flag” every day and imposes a criminal penalty on a principal or teacher who fails to require students to participate in the salute and pledge of allegiance. A New Hampshire law requiring that time be provided during the school day to recite the pledge of allegiance and which specifically provides that students not participating in the recitation of the pledge of allegiance may silently stand or remain seated while respecting the rights of students participating was found constitutional. This Act preserves the requirement that students have the opportunity to salute and pledge allegiance to the American flag each school day but revises the Code so that the requirement complies with the First Amendment of the Constitution. Specifically, this Act does all of the following: Section 1 revises § 4105 of Title 14 to comply with the First Amendment of the U.S. Constitution by requiring schools to provide an opportunity for students to salute the flag and pledge allegiance to the American flag every day. Section 2 adds charter schools to § 4101A of Title 14 to be consistent with the revisions in Section 1 of this Act and makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual. Section 3 repeals the penalties imposed on a principal or teacher for failure to comply with § 4105 of Title 14. Section 4 repeals the penalties imposed on a principal or teacher for failure to comply with § 4101 of Title 14.

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Takes effect upon being signed into law

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