Monday, October 1, 2018

Suspensions for Students Who Don't Pledge of Allegiance, What Is Texas AG Thinking?

Pledge_of_allegiance_to_the_flag _8th_Division_LCCN2001703605.tifA dispute over the pledge of allegiance in a Texas High School is shaping up to be very interesting, mainly because of the strange position the state's Attorney General is taking in support of the school district.  A slip opinion from the federal district court offers this summary of the facts:

India Landry is an African American student who attended Windfern High School (“Windfern”) in the Cypress Fairbanks Independent School District (“Cy Fair ISD”). . . .  Windfern is a “Campus of Choice,” which Cy Fair ISD students may attend upon application and the recommendation of the home campus assistant principal and counselor. At other schools in Cy Fair ISD, India had sat for the Pledge of Allegiance (the “Pledge”) “around 200 times.”

During the spring of 2017, India’s English teacher, Jamie Johnson, told her to leave the classroom on five separate occasions because she sat for the Pledge. Also that spring, India’s Street Law teacher, Mary James, told India that it was disrespectful to this country to sit for the Pledge. The day after Ms. James admonished India for sitting for the Pledge, Ms. James sent India and another African American student to Principal Martha Strother’s office because they were sitting for the Pledge. Principal Strother is the designated authority to handle student behavior at Windfern. Principal Strother told the two students they had to stand for the Pledge.

On October 2, 2017, India was in Principal Strother’s office when the Pledge was recited. India remained seated. In response, Principal Strother “immediately expelled India from school” by saying, “Well you’re kicked outta here.” Assistant Principal Penny Irwin-Fitt called India’s mother, Kizzy Landry, and gave her five minutes to pick up India or the police would escort India from school. While India waited, administrators made hostile remarks to her. Ms. Fitt said India would stand for the Pledge like the other African American student in her class. The secretary, Karen Walters, said, “This is not the NFL.”

. . . .

On October 5, 2017, India and Kizzy Landry met with Principal Strother. Principal Strother stated that sitting was disrespectful and would not be allowed, and that India must stand for the Pledge to be permitted to return to Windfern. Principal Strother suggested that, instead of sitting, India could write about justice and African Americans being killed.

. . . .

Regarding the Pledge, the Cy Fair ISD handbook states: "Pledge of Allegiance and a Minute of Silence Texas law requires (Texas Education Law Section 25.082) students to recite the Pledge of Allegiance to the United States flag and the Pledge of Allegiance to the Texas flag each day. Parents may submit a written request to the principal to excuse their child from reciting a pledge."

India sued the school district, claiming it had violated her First Amendment speech rights and discriminated against her based on race, along with several other claims.
Quite honestly, I am surprised this case is still on the court's docket.  The Supreme Court held in West Virginia v. Barnette that a school cannot compel a student to participate in the pledge of allegiance.  To do so violates the student's free speech rights because it forces a student to participate in a ceremony and recite ideas with which the student disagrees.  The Court wrote, "If 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. If there are any circumstances which permit an exception, they do not now occur to us."
The more unfathomable part of this cases is that Texas Attorney General Ken Paxton is siding with the school. According to the Houston Chronicle, he issued  this statement:

School children cannot unilaterally refuse to participate in the pledge. The U.S. Supreme Court has repeatedly held that parents have a fundamental interest in guiding the education and upbringing of their children, which is a critical aspect of liberty guaranteed by the Constitution.

For the life of me, I do not understand this argument.  The Supreme Court said the exact opposite. It said schoolchildren can refuse to participate in the pledge of allegiance in Barnette.  References to parental rights are not much help. They just cloud an issue that is otherwise crystal clear.

Yes, the Court has recognized a right on behalf of the parents, but that right comes up when parents are objecting to something that the state is forcing on their children, most notably compulsory attendance in a public school.  Parents have asserted the right to establish that they are free to attend private school, or potentially home school, instead of going to public school.  Courts agree.

But the fact that parents have some rights to resist school policies does not mean that students lack that power for themselves, which seems to be Paxton's logic.  To the contrary, the Court famously emphasized in Tinker v. Des Moines that students do not shed their First Amendment rights at the schoolhouse doors.  That case makes no mention of parental rights.

To Paxton's defense, the Eleventh Circuit, in Fraizer v. Winn, upheld a statute the required parent consent for a student to opt out of the pledge.  The case's logic, however, is substantively problematic and cursory.  It ignores the student's right and oddly focuses on whether the statute is overbroad.  It asks that question because it reasons the statute is neutral on its face.  In other words, it assumes that the law is generally constitutional and the only potential problem it raises is the possibility that it might incidentally burden speech.  But, of course, the big question is not the incidental effects of the law, but whether the right to opt out belongs to the student or the parent.  In fact, the court basically admits that it is skipping this analysis writing that "We see the statute before us now as largely a parental-rights statute."

Under similar facts, a longer and more well reasoned Third Circuit case, Circle Sch. v. Pappert, did not even bother with the parental rights issue because it found that the other claims in the case were precedent and dispositive.  The court wrote:

Pennsylvania's parental notification clause clearly discriminates among students based on the viewpoints they express; it is “only triggered when a student exercises his or her First Amendment right not to speak.” A student's decision to recite the Pledge of Allegiance or the national anthem, and thereby adopt the specific expressive messages symbolized by such an act, does not trigger parental notification. On the other hand, a student's refusal to engage in the required recitation leads to a written notice to his or her parents or guardian, and possibly parental sanctions. As the District Court correctly pointed out, given that the purpose of the bill is to support the recitation of the Pledge of Allegiance or the national anthem in schools, a parental notification clause that is limited only to parents of students who refuse to engage in such recitation may have been purposefully drafted to “chill speech by providing a disincentive to opting out of Act.” The Supreme Court has repeatedly stated that “constitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights.” 

The Commonwealth, on the other hand, does not offer any convincing governmental interest which this parental notification scheme is designed to further. Its claims that “the parental notification system simply serves an administrative function, designed to efficiently inform all parents of an aspect of their children's education,” and that “[p]resumably, less administrative resources would be expended informing the parents of those who declined to participate than informing all parents,” are unpersuasive. The administrative convenience argument appears makeweight. It appears just as likely, if not more likely, that notification to all the school's parents at one time, possibly along with other notices sent at the beginning of the school year, would actually conserve administrative resources. Instead, under the Act, teachers must watch for students who refuse to recite the Pledge of Allegiance, record their names, report them to the school administration and notify their parents individually.

Of more fundamental importance, the Commonwealth's stated interest of parental notification is simply not “so compelling of an interest” as to justify the viewpoint discrimination that significantly infringes students' First Amendment rights. We agree with the District Court that the parental notification clause of Section 7–771(c)(1) unconstitutionally treads on students' First Amendment rights.

Local reporting suggests something more sinister than faulty legal logic is at play in the Texas Attorney General's decision to engage this issue--an attempt to leverage civil rights and patriotism in advance of midterm elections.  To this, the Supreme Court also offered a stern warning and an explanation worth remembering as our nation confront's debates about how we show our patriotism:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism  and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

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