DSU President’s 2016 Essay Shows Immigrant’s Love of Country, Misreading of Anthem Law

Our discussion of the NAIA tournament move to Sioux Falls and the national anthem absolutism that chased it here elicited a reference to the stance of Dr. José-Marie Griffiths, president of tournament host Dakota State University, on standing for the anthem.

Dr. Griffiths wrote about the anthem last year, in her September 16, 2016, “President’s DSUpdate,” around the time Colin Kaepernick was making news with his knee. Speaking from her immigrant background (Dr. Griffiths was born and educated in England and moved to America in 1979), Dr. Griffiths believes passionately in “the high calling to which the United States’ founding fathers aspired and to which they challenged us as heirs to continue to pursue….” She also warns her fellow members of the DSU community to “carefully consider the statements of respect – or disrespect – we choose to make,” since “those actions reflect not only on our personal perspectives, but on the community and country we have chosen to be a part of, that is supporting each of us in our own ‘life, liberty, and the pursuit of happiness.'” Without mentioning Kaepernick or the specific issues of police brutality and racial discrimination that prompted his and others’ protest, Dr. Griffiths acknowledges that there are “enormous problems that we need to address across this nation” and that “Academic communities have a strong responsibility to encourage dialog and yes, to protect free speech, new ideas, and even protest, when the dissonance and distance between our ideals and reality become too great.” Dr. Griffiths concludes her September 2016 essay with this declaration and invitation:

I want you to know that when I hear the national anthem, and most especially when I hear it beginning to ring out at any activity associated with DSU, I will stand, to show my respect for the existence and ideals of this country that I call my own, and by extension the organizations within it with which I have chosen to participate.

I invite you to join me at those times so that we stand together in a community demonstration of collective respect for all the American flag signifies – not our failures but our ideals, not our weaknesses but our strengths, not our individual isolation but our inclusion in community [Dr. José-Marie Griffiths, “President’s DSUpdate, 2016.09.16].

Dr. Griffiths’s stance is reasonable. I cannot fault her for her sincere patriotism or for the DSU image management that is part of her job (although I will parenthetically contend that the only reason to stand for the anthem is love of country, not concern about how one’s patriotic expressions may affect the image of one’s school or employer).

I can fault her, however, for opening her essay by incorrectly invoking federal law:

The traditional expectation (as well as federal law – Chapter 1 of Title 4 of the U.S. Code (4 U.S.C. § 1 et seq). is that upon hearing the anthem being played, everyone present will stand ‘at attention,’ face the flag; non-military people will put their right hand over their heart for the duration and people in active military duty, whether or not they are in uniform, are to salute [Griffths, 2016.09.16].

United States Code Title 4 Chapter 1 is the “flag code.” It does not mention the anthem. For song etiquette, we must turn to 36 USC §301, which deems the Star-Spangled Banner to be the anthem and suggests that

During a rendition of the national anthem—

1. when the flag is displayed—
   1. individuals in uniform should give the military salute at the first note of the anthem and maintain that position until the last note;
   2. members of the Armed Forces and veterans who are present but not in uniform may render the military salute in the manner provided for individuals in uniform; and
   3. all other persons present should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart; and
2. when the flag is not displayed, all present should face toward the music and act in the same manner they would if the flag were displayed [36 USC §301].

Interesting that this suggestion applies to “all other persons present.” Given that, contrary to the opinion of Trumpist bigots, refugees and other non-citizens are persons, it is interesting to think that U.S. law would compel foreign visitors to stand and salute a flag that is not yet officially theirs.

But federal law compels no such salute from anybody. Contrary to Griffiths’s slippage into “will” (distanced from her qualifying “expectation” with her mis-citation of federal law), the law says “should,” which differs importantly from “shall.” Our federal anthem and flag rules are guidance, not mandates:

On the national level the Federal Flag Code provides uniform guidelines for the display of and respect shown to the flag. In addition to the Code, Congress has by statute designated the national anthem and set out the proper conduct during its presentation. The Code is designed “for the use of such civilian groups or organizations as may not be required to conform with regulations promulgated by one or more executive departments” of the federal government. Thus, the Flag Code does not prescribe any penalties for non-compliance nor does it include enforcement provisions; rather the Code functions simply as a guide to be voluntarily followed by civilians and civilian groups.

The Federal Flag Code does not purport to cover all possible situations. Although the Code empowers the President of the United States to alter, modify, repeal, or prescribe additional rules regarding the flag, no federal agency has the authority to issue “official” rulings legally binding on civilians or civilian groups [John R. Luckey, “The United States Flag: Federal Law Relating to Display and Associated Questions,” Congressional Research Service Report for Congress, 2007.07.05].

University presidents and other good Americans are welcome to explain, justify, and recommend displays of patriotism. But we should be careful not to color our recommendations as edicts of law… and we should remember that kneeling is an alternative expression of respect.