When you’re a constitutional law nerd, you get a lot of social media posts tagging you and asking “is this constitutional??!!” People are rarely happy with my standard response: it’s complicated and maybe. Sometimes, however, the answer is easier, or I think it is. When people started posting about the sixth grader arrested in Florida, though he was not ultimately prosecuted, over a dispute beginning with his refusal to participate in the pledge of allegiance, I thought it was simple even though people were really asking two questions without realizing it. The first easy answer is that his arrest was not itself a free speech violation because the stories all appeared to support an easy conclusion that his protest escalated to the point where it substantially disrupted the classroom, the basic standard for student speech cases. (Though this should not negate the evidence of disproportionate treatment of people of color in school discipline issues.) Most people understood that but were really asking about how the dispute started: the demand that the student participate in the pledge itself. If there was one certainty I had it was that the demand was obviously unconstitutional but it turns out that few things are ever that simple in constitutional law.
This should be simple for one reason: West Virginia v. Barnette (1943). This is one of the most celebrated free speech cases in American history. It touches on so many important themes around speech, patriotism, minority rights, democratic governance, and judicial power that I often discover I can lecture on it for an hour and completely forget the other material I had to cover. The backstory is complicated and fascinating but the gist of Barnette is that during a period of war induced patriotism, schools backed by mob violence sought to coerce Jehovah’s Witnesses into saluting the flag and reciting the pledge of allegiance in violation of their religious beliefs. Justice Robert Jackson declared that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” In other words, the state simply has no interest in compelling children to express patriotic feelings. Against a backdrop of a war against fascism, Jackson warned that “[t]hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”
So the issue should have been simple. Even if the student’s actions escalated to an unacceptable place, the teacher’s demand to participate in the pledge was unconstitutional. But, as happens so often, a little research complicated things. Florida has a statute regulating the pledge in schools:
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 … 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, including standing and placing the right hand over his or her heart.
Thus, the state allows schools to mandate the pledge and requires parental authorization to excuse students. In Frazier v. Winn (2008), the Eleventh Circuit upheld this law by distinguishing Barnette because Florida allowed students to opt-out where West Virginia’s law was absolute. The state, the court concluded, simply sought to balance the student’s rights against the rights of parents to control their child’s upbringing. As discussed in much greater detail in this article, this is a bizarre conclusion. Bizarre because the court failed to actually engage in a free speech analysis, it essentially ignored the student’s rights completely. The state’s interest is exactly the same as in Barnette, the compelled expression of patriotism, and that interest was rejected as illegitimate. Quite simply the state has no interest in coercing patriotic statements from students (or anyone), such an attempt to coercively eliminate dissent is a step on a dangerous slippery slope. The constitutional dimension of parental rights arises when the government intrudes upon decisions around upbringing, such as by prohibiting private education or forcing a parent to allow child visitation with a third party against her will. A child exercising their own right to free expression against state coercion does no harm to parental rights. Additionally, as the Third Circuit held in striking down a policy notifying parents when children refuse to recite the pledge, Florida’s policy is viewpoint based. It only seeks to inhibit students who resist the compelled declaration of political beliefs. If the state’s interest was truly to support parental rights, it could at least have conditioned all participation or non-participation in the pledge on parental permission. But its real goal is to chill student expression that it disapproves and coerce the exact message that Barnette forbids.
My bigger concern is that Frazier opens a massive hole in student speech rights. This would allow a school to adopt a rule that anytime students want to engage in protected expression, they must provide parental authorization in writing. Yes, wearing black armbands to silently communicate an antiwar message is protected speech but only with dad’s approval. This would alter the basic fact that children maintain rights against the government, those rights are personal to them. For the state to condition the exercise of those rights on a third party, it should have to pass a much higher bar than Frazier required.
