State Pledge of Allegiance statute violates the constitutional rights of students, parents, and private schools

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The Circle School v. Phillips, 270 F. Supp. 2d 616 (E.D. Pa. 2003)

The Pennsylvania legislature enacted a law mandating that all schools (with the exception of certain religious schools) administer and students recite the Pledge of Allegiance or sing the National Anthem every morning. The law required all students to participate unless they declined to do so on the basis of religious or personal belief; even then, though, the law required written notification to the parents of any student who declined to participate. Several plaintiffs challenged the law as unconstitutional: (1) a public high school student asserted that the law violated his First Amendment right to free speech; (2) parents of students in certain private nonreligious schools alleged that the law violated their liberty interest in directing the upbringing and education of their children; and (3) certain private nonreligious schools asserted an infringement of their rights to free speech and free association.

The federal court for the Eastern District of Pennsylvania found the law unconstitutional.

Student Claims: The student argued that the law compelled or coerced students to recite the pledge or sing the anthem by providing a disincentive to opt out, in the form of the parental notification provision. In West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), the U.S. Supreme Court held that students’ First Amendment rights are violated when the state compels them to recite the pledge, salute the flag, or in some other way declare a belief. If the noti?cation provision impinges on a student’s right not to speak, it is unconstitutional unless it serves a compelling governmental interest and is narrowly tailored to serve that interest. In this case, the court rejected the state’s assertion of a compelling interest: that notification was an effective way to notify parents of the law’s administration. The law’s legislative history indicates that the purpose of the notification provision was, rather, to punish students who did not recite the pledge or the anthem. In addition, the court found the notification provision unnecessary to promoting the interest asserted. A generalized notice to all parents would serve the same end.

Parent Claims: The parents of children in private nonreligious schools argued that the law infringed on their Fourteenth Amendment liberty and due process rights to choose the method used to educate their children. In choosing the private nonreligious schools that they did, they sought to expose their children to the values of individuality, self-discovery, and self-learning. Mandatory daily recitation of the pledge or the anthem, they claimed, undermined this educational message.

As noted above, the court ruled that—because the law infringes on a fundamental constitutional right—it can only be upheld if it serves a compelling governmental interest and is narrowly tailored to serve it. In this context, the court accepted the state’s asserted interest as compelling: that teaching patriotism and civics is an important part of the development of an educated and responsible citizenry. Again, however, the court did not find the law narrowly tailored. State law already allows schools to instill such values by devoting one class period per week to that purpose. That less-restrictive method of teaching patriotism and civics is more narrowly tailored to serve the state’s interest.

School Claims: The school plaintiffs argued that the law impaired their ability to express those views, and only those views, that they intended to express. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the U.S. Supreme Court held that a New Jersey law requiring the Boy Scouts to accept homosexual members would compel the Boy Scouts to express the view that homosexuality is acceptable, which is contrary to the Boy Scouts’ philosophy. The law thus violated that organization’s right to freedom of expressive association.

It is clear that the school plaintiffs in this case, who seek to instill values in children through instruction and activities, are also an association engaging in expressive activity. These schools advocate the value of independent thought and free speech among their students. They argue that the law requires them to affirm the state’s view on patriotism in a manner prescribed by the state, thus eliminating the ability of their students to make without coercion their own choices about what (if anything) they wish to recite. The court agreed with this argument and, because the law was not narrowly tailored, found it unconstitutional.

summarized by Ingrid M. Johansen

posted Summer 2003