The Path Not Followed: An Administrative Solution to the Flag Salute Controversy, 1937–1939

Abstract

The Path Not Followed:An Administrative Solution to the Flag Salute Controversy, 1937–1939 Richard F. Hamm (bio) In late September 1937 Grace Sandstrom, a thirteen-year-old eighth grader on Long Island began having trouble at Lake Ronkonkoma Elementary School. Her Jehovah's Witness faith kept her from saluting the American flag, a practice required by state law. The matter escalated. The school principal, along with members of members of the local school board, and the school's attendance officer became involved in an effort to compel her to salute the flag. Sandstrom was repeatedly sent home from school for refusing to salute the flag. Because their daughter was absent from school, the Sandstroms were prosecuted for failing to obey "Section 627 B 2 of the School law," requiring that parents send their children to school. The resulting case became part of a much larger effort by the Witnesses to use constitutional law in the courts to limit laws and regulations that restricted the practice of their religion, earning this religious group a "place of pride in constitutional law casebooks and histories." The Witnesses, in the words of legal scholar Shawn Francis Peters, made "an indelible mark . . . upon American law."1 But their efforts did not result in clear constitutional law. As legal historian Sarah Gordon writes, "Religion has bedeviled the courts" producing some of the "most divisive and difficult questions in all of constitutional jurisprudence" lasting until today. The flag salute issue is a case in point, with the United States Supreme Court reversing its position on the issue. A challenge to Pennsylvania's flag salute policy, brought by the Gobitis family children was moving through the courts at the same time as the Sandstrom case. It culminated in the first of the United States Supreme Court's Flag [End Page 261] Salute cases, Minersville School District v. Gobitis, which upheld the compulsory flag salute. Within three years, the Supreme Court in West Virginia State Board of Education v. Barnette would reverse itself and find in favor of the Witnesses.2 As the Witnesses's cases are the fount of much of our modern constitutional interpretation about the boundaries between religion and state, their interactions with the courts have been widely studied. As one of the leading case books on American constitutional history puts it, "The first concerted exploration of what the religion clauses [of the 1st Amendment] meant came with a series of challenges against state and local restrictions litigated by the Jehovah's Witnesses." Thus, in previous explorations of the flag salute controversy, scholars have focused on the constitutional issues, the course of changing views within the Supreme Court, the use of the legal system to suppress the Jehovah's Witnesses, the explosion of extra-legal violence against this religious group, their role in reshaping law in New York, and their litigation campaign (staged with the help of the American Civil Liberties Union [ACLU]) that was successful in using courts to protect their rights.3 However, the Sandstrom case reveals what has not yet been explored in the literature: that the Witnesses and their allies tried to take another path to resolve their problems with the law. On behalf of Grace Sandstrom, the Witnesses and lawyers from the ACLU repeatedly asked the educational authorities to write a religious exception into the school regulations that implemented the state flag salute law. In other words, they sought an administrative law solution to the conflict between the law and the Witnesses's faith. At the very time that the Witnesses turned to administrative law, it had become a key part of the American legal framework. Administrative law had planted roots in the nineteenth century (in the fertile ground of the expansive statute law), expanded tremendously during the Progressive Era, [End Page 262] prospered in the 1920s, and grew to a vast forest of law during the New Deal. Therefore, in the telling phrase of historian Joanna L. Grisnger, "by the end of the 1930s, the bureaucrats were in charge." School law was a classic example of the development of both law and administrative law. For example, in New York the statute law set the framework in 1937 State Education...