Eleventh Circuit Denies En Banc Review in Challenge to Florida Pledge Statute

As noted on Law.com, the Eleventh Circuit, over the dissent of Judge Rosemary Barkett, has denied a request for en banc review of the July, 2008 panel ruling in Frazier v. Winn, 535 F.3d 1279 (11th Cir. 2008).  In the portion of the July decision for which en banc review was sought, the panel rejected eleventh grader Cameron Frazier's First Amendment challenge to the Florida statute prescribing that a public school student cannot refuse to say the Pledge of Allegiance unless the student's parent submitted a written request that the child be excused from the Pledge requirement.  In Frazier's own situation, no disagreement about his prerogative to decline to say the Pledge existed between the student and his mother, who filed the case with him as his next friend. Frazier argued that, under Barnette, a student had a First Amendment right to refuse to participate in the Pledge, a right that was not contingent on parental approval of that choice.  The Eleventh Circuit panel unanimously rejected Frazier's challenge, accepting the state's defense of the statute as reflecting recognition of parents' constitutional right to direct the upbringing of their children.

Dissenting from the denial of en banc review, Judge Barkett characterized the panel's conclusion as directly contravening Barnette and deviating from the decisions of other courts reviewing parallel claims. For example, in Circle Schools v. Pappert, 381 F.3d 172 (3d Cir. 2004), the court invalidated a Pennsylvania statute mandating that parents of all schoolchildren in the state, including those in private schools, be notified if their child declined to say the Pledge.  Judge Barkett criticized the panel decision's failure to acknowledge that minors have First Amendment rights in school and argued that the state cannot delegate to parents what it is constitutionally prohibited from doing with regard to the Pledge, compelling the student's participation despite his objection as a matter of freedom of conscience.

In Frazier, the panel opinion seems to resist any serious consideration of the protection properly afforded to a child's freedom of conscience. This cavalier treatment of the student's rights claim is particularly ill-advised when the claim presented in that of a mature minor, here a seventeen year old high school junior, and when the guiding Supreme Court ruling in Barnette addressed its constitutional concern directly to the rights of the students subject to the West Virginia flag salute requirement. Justice Jackson wrote:

It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.

319 U.S. at 633-634.

Thanks to How Appealing for the link to the opinion denying en banc review.

JFB