Frazier v. Winn, No. 06-14462 (11th Cir. July 23, 2008)
The U.S. Court of Appeals for the Eleventh Circuit (AL, FL, GA) has struck down a Florida state law that it found requires all students to stand at attention during the Pledge of Allegiance, even those excused from reciting the Pledge. However, the court upheld the law’s requirement that a student obtain parental permission to be excused from participating. Cameron Frazier, a Palm Beach County high school student, challenged the law in federal district court on the grounds it is invalid both on its face and as applied specifically to him. The state defended the parental consent provision, invoking parents’ constitutional right to control the upbringing of their minor children, and insisted that the law’s requirement that “civilians” stand for the Pledge actually does not apply to students excused from reciting the Pledge. The district court held that the parental consent rule was facially unconstitutional because it denied the student the “right to make an independent decision whether to say the pledge” and that the requirement to stand was facially unconstitutional because it did, in fact, apply to students excused from recitation.
The Eleventh Circuit affirmed in part and reversed in part. The appeals court agreed with the student that the requirement that all students stand during the Pledge violated his First Amendment free speech rights. The court rejected the state’s argument that in order to avoid a constitutional conflict it should interpret the statute as requiring only those students not exempted from the Pledge to stand. While conceding that courts should avoid constitutional problems when choosing between two plausible statutory constructions, the court found the state’s interpretation “improbable.” Instead, it agreed with the district court that the term “civilians” distinguishes most people from “persons in uniform,” who are required by law to deliver a military salute during the Pledge, and that the term easily covers all students. However, this invalid provision could be severed, the court concluded, leaving the statute otherwise enforceable.
Turning to the parental permission provision, the Eleventh Circuit found that unlike West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) and similar decisions that the state may not compel students to participate in reciting the Pledge, this provision protects the parents’ right to decide how their children will be educated on civic values. The state’s interest in “recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech,” the court concluded. Even if the balance among parent, student, and school rights might favor the rights of a mature high school student in a particular situation, such as the right of the student not participate in the Pledge, that balance does not favor students in a “substantial number of instances—particularly those instances involving elementary and middle school students—relative to the total number of students covered by the statute.”
Frazier v. Winn, No. 06-14462 (11th Cir. July 23, 2008)
[Editor’s Note: The Legal Clips summary of the district court decision is below, along with links to information on other Pledge of Allegiance litigation.]
NSBA School Law pages on Frazier v. Alexandre