For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- None.
The Board of Education of the City of Elizabeth appealed to the Appellate Division from the determination of the State Board of Education which upheld the action of the Commissioner of Education for reasons given by him. We certified the appeal before argument in the Appellate Division. We affirm the judgment under review upon the same basis. The opinion of the Commissioner of Education reads as follows:
"Petitioners in this case seek the reinstatement in the Elizabeth public schools of their children, who were excluded because they refused to pledge allegiance to the flag of the United States.
A hearing in this matter was conducted by the Assistant Commissioner in charge of Controversies and Disputes at the office of the County Superintendent of Schools in Elizabeth on June 11, 1963.
Petitioner Holden's son, James Gregory Holden, was a pupil in the fourth grade at John Marshall School in Elizabeth during the 1962-63 school year. On February 14 he was suspended from school by the principal for refusing to pledge allegiance to the flag. On March 7 the Board of Education reviewed the suspension and continued it. Petitioner
Shumate's son, Harold Shumate, and daughter, Deborah Shumate, were pupils in grades 6 and 4, respectively, of the same school. Harold was suspended on February 18 and Deborah on March 12, for the same reason. Petitioner McClain's son, Jerome, and daughter, Karen, were pupils in grades 6 and 3, respectively, of the same school. Jerome was suspended from school on March 12, and Karen in the month of February, for the same reason. On March 14 a petition seeking reinstatement of his son was filed by petitioner Holden; subsequently, on April 29, an amended petition was filed to include petitioners Shumate and McClain, and requesting the Commissioner to order their children reinstated pendente lite. Such an order was issued by the Commissioner on May 10, 1963.
The New Jersey statute relative to the pledge of allegiance by pupils in the public schools is R.S. 18:40-80, as amended by Chapter 212, Laws of 1944, and Chapter 83, Laws of 1954, the pertinent parts of which read as follows:
'Every board of education shall:
(c) Require the pupils in each school in the district to salute the flag of the United States and repeat on every school day the pledge of allegiance to the flag which shall be as follows: "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation, under God, indivisible, with liberty and justice for all." The salute and pledge of allegiance shall be rendered with the right hand over the heart; but children who have conscientious scruples against such pledge or salute, or the children of accredited representatives of foreign governments to whom the United States extends diplomatic immunity, will always show full respect to the flag while the pledge is given by merely standing at attention: the boys removing the headdress.'
Petitioners do not deny that their children refused to pledge allegiance to the flag; in fact, they freely state that they instructed their children to refuse to do so. They do assert, and it was not denied by the teachers who observed the children, that these pupils did stand at attention. Petitioners testified that they believe in a religion known as Islam, and that followers of this religion, called Muslims, or sometimes Black Muslims, are taught that their sole allegiance is to Almighty God Allah. They are further taught, they testify, that the flag is but a symbol and that it would be contrary to their teachings to pledge allegiance to any flag, including the flag of Islam. Their religious teachings are based on the Quran, as interpreted to them by one Elijah Muhammad, whom they regarded as their leader and spiritual prophet. They therefore contend that their refusal to permit their children to pledge allegiance to the flag falls within the exemptions provided in R.S. 18:14-80, supra, for 'children who have conscientious scruples against such pledge or salute.'
Respondent argues that the exemption for conscientious scruples was never intended to be so broadly construed as to include petitioners' beliefs. Respondent sought to establish through cross-examination of petitioners that their beliefs were as much politically as religiously motivated, and were closely intertwined with their racial aspirations. In effect, respondent challenges petitioners' ...