## Facts

- New York City public schools began the day with the Pledge of Allegiance pursuant to directives from school leadership.
- The policy allowed students who objected to reciting the Pledge to leave the classroom during the recitation.
- Mary Frain, Susan Keller, and Raymond Miller, public school students with objections to participating, remained seated and silent in their homerooms during the Pledge.
- The students refused to leave the classroom during the Pledge because they viewed forced removal from homeroom as a penalty for exercising their right not to participate.
- School officials suspended the students for refusing to leave the classroom, asserting concerns about maintaining discipline.
- The students brought consolidated § 1983 class actions seeking injunctive relief and moved for a preliminary injunction.
- The court entered a temporary restraining order restoring the students to school pending the preliminary injunction decision.
- After reinstatement, the students continued to sit silently during the Pledge without causing disturbances.

## Issues

1. Whether public school officials may require students who decline to recite the Pledge of Allegiance to leave the classroom during the Pledge, on pain of suspension.
2. Whether suspending students for remaining silently seated during the Pledge violates the First and Fourteenth Amendments where the conduct is non-disruptive.
3. Whether the actions were properly maintainable as class actions given the common legal questions affecting other students.

## Decision

- The court granted a preliminary injunction.
- The court enjoined defendants from suspending or otherwise disciplining the students for quietly remaining seated in their homerooms during the Pledge.
- The court held that students have a constitutional right not to participate in the Pledge and may exercise that right by remaining silently seated in the classroom.
- The court determined the suits could proceed as class actions because common legal questions affected a substantial number of similarly situated students and the named plaintiffs adequately represented the class.

## Legal Principles

- Public school students retain First Amendment rights in school, including the right not to engage in compelled patriotic exercises.
- A school may not condition a student’s right to refrain from the Pledge on leaving the classroom when the student remains silent and non-disruptive.
- Disciplinary action that functions as a penalty for exercising a constitutional right is impermissible absent a sufficient justification grounded in actual or demonstrable disruption.
- Speculative concerns about discipline do not justify restricting protected student non-expression where the record shows the conduct causes no disturbance.
- Class action treatment is appropriate when common legal questions predominate and representative plaintiffs can fairly protect the class’s interests.

## Conclusion

The court issued preliminary injunctive relief barring suspensions for students who silently remained seated during the Pledge, concluding that schools may not penalize or burden nonparticipation by requiring departure from the classroom absent evidence of disruption.


Frain v. Baron, 307 F. Supp. 27 (E.D.N.Y. 1969)