Freethought & Rationalism Archive

Stephen Maturin · 07-16-2003, 09:01 AM

As discussed in this thread, late last year the Pennsylvania legislature enacted a law mandating that both public and private schools begin each day with Pledge recitation or singing the national anthem. The law allowed students to refrain, but required parental notification in the event of a refusal.

Yesterday a federal district court judge held that the law violated the constitutional rights of parents, teachers and schools, all three classes of plaintiffs named in the lawsuit. From law.com:

Quote:

In a 29-page decision in The Circle School v. Phillips, handed down late Tuesday, Judge [Robert F.] Kelly found that the new law -- a pair of subsections added to the Pennsylvania Public School Code -- failed to pass constitutional muster because it infringed on fundamental rights and was not "narrowly tailored" to advance a "compelling state interest."

Kelly found that the students' rights were violated by a provision in the law that requires parents to be notified whenever a student exercises his or her right not to participate in singing or reciting.

"There is evidence that the drafters of the act intended for the parental notification provision to chill speech by providing a disincentive to opting out," Kelly wrote. Kelly found there was no reason why the law could not employ a "generalized notice" to all parents that informed them of the new mandate to sing or recite, and that "your son or daughter may opt out ... based on religious conviction or personal belief."

Such an advance notice, Kelly said, would achieve the same goals without chilling any speech.

* * *

"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," [Supreme Court Justice Robert H.] Jackson wrote [in the 1943 case West Virginia State Board of Education v. Barnette].

Kelly found that Jackson's words "are as appropriate now as they were 60 years ago."

I haven't yet been able to find Judge Kelly's opinion online.

Stephen Maturin · 07-16-2003, 12:40 PM

Found the opinion on the website of Circle School, one of the plaintiffs in that case. You can download a copy in PDF here.

athee · 07-16-2003, 03:28 PM

I think texas just passed one of these boneheaded laws mandating the POA to be recited. The parent must send a note to excuse the child. Yea that's real inclusive activity down here.

idiots.

Veovis · 07-16-2003, 03:36 PM

Damn! I wasn't aware of this! I"m just glad my homeroom teacher wasn't either.

Rusting Car Bumper · 07-17-2003, 07:48 AM

Just for the record, no child can legally be forced to say the Pledge. The Supreme Court has already ruled on this.

DC

Philosoft · 07-17-2003, 10:28 PM

Quote:

Originally posted by DigitalChicken
Just for the record, no child can legally be forced to say the Pledge. The Supreme Court has already ruled on this.

I am also under this impression. Has there been any mention of previous case law in the Philadelphia or Texas cases?

abe smith · 07-18-2003, 06:59 AM

That Supremes's decision was the *Gobitis* case of several decades back, ne?; in which the Court affirmed (I forget the vote number. Was it a 9?) that no public?school student can be required to salute the Flag (= to recite the Pledge). The case involved Jehovahs Witnesses, as so many First Amendment cases have done. Altho my recolllection is fuzzy (Yeh, Ill go home & look it up.), I'd assume (Never assume a goddamned thing!) that that (ultimate) decision wd apply to the Penna matter. Hence, why doesn't it apply?

Thanks again , Stephen, for quoting (never too often!) that great sentence of J. Jackson's about the "fixed star".

Godless Dave · 07-18-2003, 07:05 AM

I think they were trying to get around it by saying students aren't required, but to be exempted they had to have permission from their parents.

Stephen Maturin · 07-18-2003, 08:44 AM

Quote:

Originally posted by abe smith
That Supremes's decision was the *Gobitis* case of several decades back, ne?; in which the Court affirmed (I forget the vote number. Was it a 9?) that no public?school student can be required to salute the Flag (= to recite the Pledge). The case involved Jehovahs Witnesses, as so many First Amendment cases have done. Altho my recolllection is fuzzy (Yeh, Ill go home & look it up.), I'd assume (Never assume a goddamned thing!) that that (ultimate) decision wd apply to the Penna matter. Hence, why doesn't it apply?

Hi Abe,

Actually, Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940) upheld a mandatory flag salute statute. The Court overruled Gobitis three years later in West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), the case from which that famous Jackson quote comes. Felix Frankfurter, who wrote the majority opinion in Gobitis, dissented in Barnette. Frankfurter thought that decisions regarding whether school districts can make kids say the Pledge and salute the flag on pain of expulsion were best left to state legislatures.

What a testicle that guy was.

As for why Barnette didn't apply directly to the Pennsylvania case, I think Godless Dave is right. The Pa. law didn't absolutely require participation in patriotic rituals. However, it did require schools to notify parents if their kids refused to recite the Pledge. The judge ruled that the notification provision was sufficiently coercive that the statute violated students' First Amendment rights.

abe smith · 07-21-2003, 06:40 AM

...to you, Sieur Stephen, for 'mending the fuzzy-facts potholes!

Oh, man: when Oi feel like getting down on my knees in gratitude & praise, I go & read the Supremes's decisions..... What have guys wrought; forsooth! Watching *human* embodied brains struggling for clarity is the holiest worship I know.

07-18-2003, 06:59 AM	#7
abe smith Veteran Member Join Date: Apr 2001 Location: springfield, MA. USA Posts: 2,482	Forced Pledge recitation That Supremes's decision was the Gobitis case of several decades back, ne?; in which the Court affirmed (I forget the vote number. Was it a 9?) that no public?school student can be required to salute the Flag (= to recite the Pledge). The case involved Jehovahs Witnesses, as so many First Amendment cases have done. Altho my recolllection is fuzzy (Yeh, Ill go home & look it up.), I'd assume (Never assume a goddamned thing!) that that (ultimate) decision wd apply to the Penna matter. Hence, why doesn't it apply? Thanks again , Stephen, for quoting (never too often!) that great sentence of J. Jackson's about the "fixed star".

07-21-2003, 06:40 AM	#10
abe smith Veteran Member Join Date: Apr 2001 Location: springfield, MA. USA Posts: 2,482	Grateful thanks (=Deller's tautology) ...to you, Sieur Stephen, for 'mending the fuzzy-facts potholes! Oh, man: when Oi feel like getting down on my knees in gratitude & praise, I go & read the Supremes's decisions..... What have guys wrought; forsooth! Watching human embodied brains struggling for clarity is the holiest worship I know.

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07-16-2003, 12:40 PM	#2
Stephen Maturin Veteran Member Join Date: Dec 2001 Location: Broomfield, Colorado, USA Posts: 1,295	Found the opinion on the website of Circle School, one of the plaintiffs in that case. You can download a copy in PDF here.

07-16-2003, 03:28 PM	#3
athee Regular Member Join Date: Mar 2003 Location: Houston, Texas Posts: 266	I think texas just passed one of these boneheaded laws mandating the POA to be recited. The parent must send a note to excuse the child. Yea that's real inclusive activity down here. idiots.

07-16-2003, 03:36 PM	#4
Veovis Veteran Member Join Date: Jul 2003 Location: Portland-upon-Willamette Posts: 1,840	Damn! I wasn't aware of this! I"m just glad my homeroom teacher wasn't either.

07-17-2003, 07:48 AM	#5
Rusting Car Bumper Banned Join Date: Jul 2002 Location: U.S. Posts: 4,171	Just for the record, no child can legally be forced to say the Pledge. The Supreme Court has already ruled on this. DC

07-18-2003, 07:05 AM	#8
Godless Dave Contributor Join Date: Feb 2002 Location: With 10,000 lakes who needs a coast? Posts: 10,762	I think they were trying to get around it by saying students aren't required, but to be exempted they had to have permission from their parents.

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