Legal News

The Pledge Of Allegiance and the Law

By Nathan Koppel

Some Florida high schoolers must recite the pledge of allegiance. Unless, that is, they can get special dispensation from their parents.

Such is the law, according to a decision yesterday by the Eleventh Circuit. But that’s a strange bit of jurisprudence, as the Law Blog sees it. Here’s a story from the Fulton County Daily Report.

The backstory: In 2005, Christine Frazier, on behalf of her son, Cameron, filed suit protesting a Florida school policy requiring students to get a parent’s permission to avoid having to recite the Pledge of Allegiance.

A federal district judge struck the policy, ruling that it “robs the student of the right to make an independent decision whether to say the pledge.”

But last year, the Eleventh Circuit reversed the lower court, holding that the policy protects parents’ constitutional right to raise their children as they see fit. “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,” the panel said.

On Monday, the 11th Circuit declined to review the panel’s ruling en banc. Here’s a copy of yesterday’s order, along with a dissent from Judge Rosemary Barkett, who said that states can not compel minors to recite the pledge.

A few questions here, though. From what part of the great document does the “constitutional right of parents” derive? We don’t know about this particular panel, but the 11th Circuit has a reputation as a right-leaning court. Aren’t conservative jurists prone to narrower readings of the constitution?

On a more fundamental level, don’t most schools retire the pledge after elementary school?

In any event, the Florida Attorney General Bill McCollum is happy. A spokesman told the Daily Report, “We’re very pleased with the ruling and see it as a significant issue for parents and families.”

Full post as published by Law Blog - WSJ.com on January 27, 2009 (boomark / email).