Frazier v. Winn – 11th Circuit Pledge of Allegiance Case and a Call to Amend the Pledge

In Frazier v. Winn, __F.3d__ (11th Cir. 2008), the Eleventh Circuit struck down part of Florida’s Pledge of Allegiance statute, Fla. Stat. § 1003.44(1) and upheld part of it.

The statute reads:

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 . . . . (emphasis in case, but not in original statute)

The Plaintiff argued that § was constitutionally invalid because it required parental permission before being excused from participation in the Pledge, and that it required him to stand during the Pledge even if excused.

Requirement that Students Stand

The Eleventh Circuit ruled that the “must stand” requirement was invalid.

That students have a constitutional right to remain seated during the Pledge is well established. See, e.g., Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1274, 1278 (11th Cir. 2004) (noting that the right to remain seated and silent during the Pledge is clearly established); Banks v. Bd. of Public Instruction, 314 F. Supp. 285, 294-96 (S.D. Fla. 1970), aff’d, 450 F.2d 1103 (5th Cir. 1971) (concluding that rule requiring students to stand during the Pledge was unconstitutional). (source)

The State of Florida agreed that this was settled law, but asked that the Eleventh interpret the statute as reading the term “civilians” to apply only to students not exempted from the Pledge. Since the statute contained no language limiting the term, the Court declined to read such a limitation into it.

Parental Consent Requirement

Here, the Court got a little more creative with the law.

The Pledge Statute permits a student to be exempted from participating in the Pledge of Allegiance if, and only if, the student presents a signed statement from his parent excusing him from participation. The Eleventh, rather than examining the Pledge Statute as a compelled speech issue, looked at it as a parental rights statute.

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 [sic] consent. Most important, the statute ultimately leaves it to the parent whether a schoolchild will pledge or not. (source)

Strangely enough, the Eleventh seemed to completely brush off the students’ First Amendment rights, and seemed to engage in a bit of judicial activism by injecting a governmental interest into the statute that seems to have no support.

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, 117 S. Ct. 2258, 2267 (1997) (“[T]he ‘liberty’ specially protected by the Due Process Clause includes the right[] . . . to direct the education and upbringing of one’s children. . . .”). (source)

The Court then balanced the students’ First Amendment rights against the parents’ fundamental right to decide how their children are reared and educated.

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, 92 S. Ct. 1526, 1541 (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”); 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.”). (source)

Of course, the parent in this case supported the child’s right to bring the lawsuit, and thus likely supported his right to skip the Pledge. The plain language of the statute does not seem to support the Eleventh’s position that this statue was a “parental rights” measure.

Conclusion

It seems like the Eleventh wanted to keep the statute intact, so they sent their clerks to find the best possible way to justify it. The statute clearly is a compelled speech statute, not a parental rights statute.

What disturbs me is that we actually have such litigation in the first place. I do not recite the Pledge of Allegiance. It isn’t that I’m not in favor of showing one’s loyalty, but I believe that participating in the Pledge is actually an act of cowardice and an act that is completely un-American.

For starters, the insertion of the term “under God” in the Pledge renders it state-sponsored endorsement of a particular set of religious beliefs in violation of the First Amendment. See Newdow v. United States Cong., 292 F.3d 597 (9th Cir. 2002) (rev’d on other grounds Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004)).

Second, the text of the Pledge makes no sense. I refuse to pledge my allegiance to a piece of cloth.

Third, I do believe that a Pledge of Allegiance is an appropriate and positive exercise. However, when it is nothing more than reciting meaningless drivel about a piece of cloth, it is no pledge at all.

Proposal — The New Pledge

I pledge my highest allegiance
to the Republic of the United States of America.
I pledge to uphold, defend, and protect the Constitution
against all enemies, foreign and domestic, at all times.
I pledge to join with my fellow citizens for this cause,
and to achieve Liberty and Justice for All

Now THAT is a patriotic, accurate, and Constitutional pledge. We should pledge to that which really matters. We should ritualize our loyalty in an accurate and constructive manner – to remember from where our country’s true strength lies. We should not fetishize a piece of cloth. Without the Constitution, that piece of cloth is worthless. It is a shame that I’m so alone in that belief.