Florida Schools Are Forcing Students To Stand During National Anthem

[JustinL]

16. an earlier version of the law was challenged, resulting in a disturbing Circuit Court ruling

In Frazier v Winn, 535 F.3d 1279 (2008), a panel of the Court considered a facial challenge to two provisions of the earlier law: the requirement that a student "obtain a parent's permission before being excused from reciting the Pledge of Allegiance," and the requirement that a student "stand during the Pledge of Allegiance even if excused."

The Court ruled that the requirement to stand applied to all students, excused and unexcused, and was therefore unconstitutional, based on Circuit precedents.

Regarding the other requirement, the Circuit Court distinguished the Supreme Court's famous 1943 Barnette ruling, reasoning as follows (pp. 1283-1285, footnotes omitted):

We see the statute before us now as largely a parental-rights statute. As such, this case is different from Barnette. 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.

Here, unlike in Barnette and in the cases cited by Plaintiff, the refusal of students to participate in the Pledge — unless their parents consent — hinders their parents' fundamental right to control their children's upbringing. The rights of students and the rights of parents — two different sets of persons whose opinions can often clash — are the subject of a legislative balance in the statute before us. The State, in restricting the student's freedom of speech, advances the protection of the constitutional rights of parents: an interest which the State may lawfully protect. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772 (1997) (&quot T)he `liberty' specially protected by the Due Process Clause includes the right() ... to direct the education and upbringing of one's children....&quot .

As the State pointed out before the district court and before us, the statute is neutral on the Pledge in the statute's deference to a parent's expressed wishes. Should a parent request that his child not recite the Pledge — even where the child wishes to recite — the statute provides that the school must excuse the student. Fla. Stat. § 1003.44(1) ("Upon written request by his or her parent, the student must be excused from reciting the pledge.&quot . Likewise, the school will protect the interests of a parent who refuses to send in a written request that his child be excused.

Although we accept that the government ordinarily may not compel students to participate in the Pledge, e.g., Barnette, 63 S.Ct. at 1187, we also recognize that a parent's right to interfere with the wishes of his child is stronger than a public school official's right to interfere on behalf of the school's own interest. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 2391-92, 132 L.Ed.2d 564 (1995) (discussing public school official's more limited role vis-à-vis parents with respect to infringing on a student's fundamental rights). And this Court and others have routinely acknowledged parents as having the principal role in guiding how their children will be educated on civic values. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 1541, 32 L.Ed.2d 15 (1972) (refusing to enforce a compulsory education requirement beyond the eighth grade where doing so would infringe upon the free exercise of the Amish religion and intrude on the "fundamental interest of parents ... to guide the religious future and education of their children&quot ; Arnold v. Bd. of Educ. of Escambia County, 880 F.2d 305, 313 (11th Cir.1989) ("Within the constitutionally protected realm rests the parental freedom to inculcate one's children with values and standards which the parents deem desirable.&quot .

We conclude that the State's interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students' freedom of speech. Even if the balance of parental, student, and school rights might favor the rights of a mature high school student in a specific instance, Plaintiff has not persuaded us that the balance favors students in a substantial number of instances — particularly those instances involving elementary and middle school students — relative to the total number of students covered by the statute. See, e.g., Muller by Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1538 (7th Cir.1996) ("Age is a critical factor in student speech cases.&quot ; see also Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973) (&quot T)he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.&quot .

In Frazier v Alexandre, 555 F.3d 1292 (2009), the full Circuit Court denied a petition for rehearing en banc. Judge Barkett dissented, pointing out the error in the panel's reasoning (pp. 1298-1300, footnotes omitted):

The panel asserts that the State's "vindication" of the parental "right of upbringing" can serve as a justification for the State's passage of this statute. This claim seriously misunderstands the nature of that right. The parental right of upbringing is not a positive right that gives parents the power to invoke the aid of the State against a minor's exercise of constitutional rights but a negative right that provides for protection of that right against the State. The cases upon which the panel relies in an attempt to establish a positive right are completely inapposite. The panel roots its (mis)conception of this right in the proposition that the due process clause of the Fourteenth Amendment encompasses the right to "direct the education and upbringing of one's children." Frazier, 535 F.3d at 1284 (citing to Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). This principle is not disputed; it is just not relevant to the case at hand.

Every case that has ever discussed the issue of "parental upbringing" dealt with the conflict between a parent's right and a State's attempted curtailment of that right, not a conflict between parent and child. In the pertinent discussion in Glucksberg, to which the panel cites, the Supreme Court was reviewing the scope of the fundamental due process liberty right, including the parental right to direct the education of one's children. The Court discussed the two seminal cases establishing this right: Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), which ruled in favor of a parental challenge against the State, overturning a state statute that forbade German from being taught in school, and Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), which ruled in favor of a parental challenge against the State, overturning a statute requiring all minors to attend public schools as opposed to private or parochial schools. Wisconsin v. Yoder, to which the panel directly cites, overturned state legislation mandating compulsory school attendance until the age of 16 because it violated two liberty interests maintained by members of the Amish community: the student's "fundamental rights ... specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children." 406 U.S. 205, 214, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).

Not only are these cases inapposite to the panel's opinion because they were not about parent-child conflict, but none involved a parent's right to enlist state aid generally, let alone enlist that aid to purposely trump the constitutional right of a minor. Nor can the panel cite any case that does so. Even assuming arguendo that parents did have the authority to infringe upon all minors' First Amendment rights as private actors, enlisting state enforcement would trigger the state action restriction of the First Amendment. Thus, even if such a hypothetical parent-child First Amendment conflict did exist, a private individual could not harness the power of the State to take any action that would directly violate another individual's constitutional right. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) ("The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals.&quot (emphasis added).

This is not a case pitting the rights of parents against children with the State as mediator but rather a prototypical example of the assertion of State power against the rights of their citizens — in this case, those of students. And the right to exercise one's conscience in not reciting the Pledge lies solely with the individual student, not with the parents of that student and certainly not with the State. This is no less true today than it was in 1943:

Words uttered under coercion are proof of loyalty to nothing but self-interest. Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men.

Barnette, 319 U.S. at 644, 63 S.Ct. 1178 (Black, J. and Douglas, J. concurring).

The Supreme Court denied certiorari in October 2009.

As quoted in the HuffPost article from the OP, the current Florida law appears to differ from the previous law in two respects:
1) The requirement to stand now applies only to unexcused students.
2) Unexcused students are now required only to stand; they are not required to recite the pledge.

If unexcused students can be compelled to recite the pledge, I imagine that a panel of 11th Circuit would rule that they can also be compelled to stand for the pledge. We can only hope that either the full Circuit Court or the Supreme Court would grant review, and adopt Judge Barkett's reasoning.