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January 28, 2009

At the Eleventh Circuit: Compelled Student Speech vs. Parental Rights

Here's a bit of blog-fodder I found in my inbox this morning. Yesterday, the Eleventh Circuit refused to re-hear en banc (PDF) a Pledge of Allegiance case it decided in July (which I didn't hear about then because I was busy taking the bar exam). The case is Frazier v. Alexandre; a copy of last year's decision is here (PDF).

In a nutshell, a Florida statute requires that public school students K-12 stand and recite the Pledge of Allegiance every day. There is an exception, however, for students whose parents provide a note requesting that they be excused from reciting it. There is not an exception for students who choose not to participate but for whatever reason cannot get a note from a parent.

A public school student, along with his mother, sued. They argued that the "Pledge Statute" was an unconstitutional violation of his First Amendment rights. They were on pretty solid legal ground. The Supreme Court ruled in 1943 that public school students cannot be compelled to salute the flag or pledge allegiance (although the majority decision caused Justice Frankfurter to write a famous lament for the death of judicial restraint).

However, the student and his mother lost in the Eleventh Circuit. The panel held that the Pledge Statute involves parental rights to control the education of their children more than it does students' speech rights. Parental rights, though not enumerated in the Constitution, are among the earliest rights recognized by the Supreme Court as a component of the "liberty" protected under the Due Process Clause. The panel held that parental rights, though not enumerated in the Constitution, trump a student's First Amendment speech rights. They denied the student's facial challenge.

So what do you think? Can (or should) the government be able to compel a public school student's speech, so long as they give the student's parents the option to excuse him?

I think the Pledge Statute it is plainly unconstitutional and the panel's decision, especially the second part, is poorly reasoned. I agree with the judge who dissented yesterday from the denial of re-hearing.

First, there is no "except for public school students" text in the First Amendment, yet the panel did not even consider the student's speech rights. Don't get me wrong, they recited the plainly settled fact that students have speech rights. See Frazier (second link, above) at 10. Then they changed the subject:

We see the statute before us now as largely a parental-rights statute. As such, this case is different from Barnette [the compelled Pledge case linked above]. Although the statute here generally requires students to recite the Pledge, the statute also requires students to be notified that they might be excused from reciting the Pledge. The statute then spells out how a student may be excused, that is, by getting his parent’s consent. Most important, the statute ultimately leaves it to the parent whether a schoolchild will pledge or not.

In something of a judicial farce, they pretended that a student's refusal to recite the pledge "hinders their parents' fundamental right to control their children’s upbringing." Frazier at 10-11. In fact, the panel all but congratulates the Florida legislature for "protecting the rights of all parents on the question of the Pledge." Frazier at 11 n. 6. Sadly, the panel is silent on the compelled speech of the student.

Extrapolating from the panel's reasoning, why shouldn't the Florida legislature be able to "vindicate" parental rights by requiring that all students, not just public school students, be compelled to say the pledge unless they can get a parental waiver? As the panel says, the State may lawfully "recognize and protect" the interests of parents in this manner.

This case is plum for certiorari to the Supreme Court, should Frasier want to keep fighting. The Eleventh Circuit's new rule conflicts with the Second, Third, Seventh, and Ninth Circuits, as well as prior Supreme Court jurisprudence.

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posted by Gabriel Malor at 12:57 AM

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