Federal Court Defers to Parents When It Comes to Pledge of Allegiance

Article from Thrun Law Firm 

FEDERAL COURT DEFERS TO PARENTS WHEN IT COMES TO PLEDGE OF ALLEGIANCE

Cameron Frazier, a Florida high school student, sued
various officials of the Florida Department of Education and
the Florida State Board of Education over their interpretation
of Florida's Pledge of Allegiance Statute ("Pledge
Statute").

The Florida Pledge Statute states:
The pledge of allegiance to the flag . . . shall be
rendered by students . . .. The pledge of allegiance
to the flag shall be recited at the beginning of the
day in each public elementary, middle, and high
school in the state. Each student shall be informed
by posting a notice in a conspicuous place that the
student has the right not to participate in reciting
the pledge. Upon written request by his or her
parent, the student must be excused from reciting
the pledge. When the pledge is given, civilians
must show full respect to the flag by standing at
attention, men removing the headdress, except
when such headdress is worn for religious purposes
Frazier claimed this statute unconstitutionally deprived
students of their First Amendment right to free expression
by forcing them to recite the Pledge of Allegiance unless
exempted by their parents. Further, even if exempted, the
Pledge Statute compelled students to stand at attention. The
district court agreed with Frazier and held that the statute
was unconstitutional. On appeal, the Eleventh Circuit Court
of Appeals agreed in part, but also reversed part of the trial
court's decision. Frazier v Winn, __ F3d __ (CA 11, 2008).

The Eleventh Circuit held that the Pledge Statute is not
a restriction of a student's free speech rights but rather
"largely a parental-rights statute." The court explained that
the statute requires that parents be informed of their right to
excuse their student from the recitation of the Pledge of
Allegiance. According to the Eleventh Circuit, the Pledge
Statute "ultimately leaves it to the parent whether a schoolchild
will pledge or not." Moreover, the court held that
"[t]he 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."

Accordingly, the Eleventh Circuit determined that courts
"have routinely acknowledged parents as having the principal
role in guiding how their children will be educated on
civic values," and concluded 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." The Eleventh Circuit
thus overturned the opinion of the trial court on the parental
exemption issue.

Next, the court turned to the issue of standing during
the Pledge. Frazier argued that the statute required all
students, even those whose parents had signed an exemption,
to stand at attention during the Pledge. The court
agreed that a reading of the statute could lead to no other
conclusion. The court found that mandate to be unconstitutional
and struck the portion of the statute that required
exempted students to stand at attention during the Pledge.

The remainder of the Pledge Statute was left undisturbed.
Michigan does not have a statute comparable to the
Florida Pledge Statute. Instead, over the past several years
Michigan school districts have relied upon the 1943 decision
of the U.S. Supreme Court in West Virginia State Bd v
Barnett, 319 US 624 (1943), in which the Supreme Court
held that compulsory participation in a flag salute or Pledge
of Allegiance was unconstitutional in that it violated the
First Amendment to the U.S. Constitution. The critical
question is not whether the student should be compelled to
recite the Pledge of Allegiance, but rather the manner in
which non-participating students should be accommodated
in the educational setting, particularly if a parent disagrees
with the student's objections.

Unless a student affirmatively disrupts the class or
otherwise attempts to interfere with the recitation of the
Pledge of Allegiance, any student wishing to simply remain
quietly in his or her seat rather than stand at attention or
leave the classroom should be permitted to do so.
Building administrators and teachers should be informed
that the Pledge of Allegiance is not compulsory in
nature and that a student's wish to simply remain quietly in
his or her seat will be permitted. However, should a
disagreement arise between the student and the parent who
requests that the student recite the Pledge, the school district
should contact legal counsel to discuss potential options to
resolve the disagreement.