Wednesday, July 5, 2017
The Fifth Circuit held last week that requiring that students perform the Mexican Pledge of Allegiance as an assignment for a Spanish language class, and the school's actions afterwards, did not violate the First Amendment. In Brinsdon v. McAllen Independent Sch. Dist., 15-40160 (5th Cir. 2017), a teacher required students to memorize and recite in Spanish the Mexican Pledge of Allegiance. A student, Brinsdon, objected to reciting the Mexican Pledge because she felt pledging allegiance to a foreign country was wrong. The student was allowed to substitute an alternative writing assignment, for which she received a "C" grade. Because students who did the recited the Mexican Pledge received "A"s, Brinsdon suspected that her grade was retaliatory. Brinsdon surreptitiously filmed her fellow students reciting the Mexican pledge in class, using a spy pen given to her by her father. The father then sent the filmed footage to media outlet The Blaze, which in turn posted the recording to YouTube. Brinsdon and her family were subsequently interviewed by Fox News and Glenn Beck, which brought national publicity to the school, much of it hostile. She was removed from Spanish class for the rest of the semester and completed the class assignments in the school office. Brinsdon, who graduated in 2014, filed suit in the Southern District of Texas, claiming that her First Amendment rights were violated when she was compelled to recite the pledge and that she was retaliated against when she was removed from class and that she suffered disparate treatment under the Equal Protection Clause when she was removed from class. The federal district court below allowed the equal protection and compelled speech claims to proceed to trial and later found granted the district a judgment as a matter of law. On appeal, the Fifth Circuit held that the school officials were entitled to qualified immunity as they did not ignore "clearly established law when compelling a non-operative recitation of the Mexican pledge." The court distinguished this case from West Virginia State Bd. of Educ. v. Barnette (1943), which rejected state law requiring daily recitation of the U.S. Pledge of Allegiance in class, by noting that Brinsdon's assignment did not require allegiance to Mexico or suppressed her ability to express her beliefs by adopting those of others. Simply put, the circuit court relied on Tinker v. Des Moines (1969) to permit schools to require recitation of alternative beliefs for "legitimate pedagogical reasons." Turning to the retaliation claims, the court determined that the timeline of Brinsdon's removal was unclear on the record, but the reason for the underlying disruption of school activities was not Brinsdon's media appearances, but the publication of the unauthorized video of the students, which is not a protected First Amendment right. The court also found that the teacher and principal were entitled to qualified immunity. The case is available here.