Pledge controversy: Students should have right of silence

October 26, 2009

This op-ed appeared October 25 in the South Florida Sun-Sentinel.

By: Clay Calvert
Attorney Clay Calvert is the Brechner Eminent Scholar in Mass Communication in the College of Journalism and Communications at the University of Florida in Gainesville.

A running gag on the 1970s sit-com Welcome Back Kotter was a series of phony notes signed “Epstein’s Mother” that character Juan Epstein penned to get out of class, telling his teacher “Hey, Mr. Kotter, I got a note!”

Parents and teachers alike play close attention: There may soon be a new generation of real-life Epsteins in Florida schools.

The U.S. Supreme Court earlier this month left intact a state law requiring public school students to obtain written permission from a parent if they don’t want to recite the Pledge of Allegiance. While Epstein’s notes were comedy, they are no laughing matter for a student who might, perhaps for deeply held political, philosophical or religious reasons, not want to recite the pledge and, more importantly, who might not want to face her parents.

One must wonder why the government is so concerned with enforcing this policy at a time when there seem to be much larger problems for it to tackle, such as double-digit unemployment in Florida. Likewise, students today face a host of problems, from cyberbullying and sexting to drugs and violence, on which government efforts might be better spent than requiring parental consent for a half-asleep minor not to perfunctorily perform a 31-word pledge in a monotone voice.

Thus it was that in Frazier v. Smith, the American Civil Liberties Union of Florida asked the nation’s high court to consider whether Florida could “condition a student’s decision, based upon his personal beliefs and convictions, to decline to recite the pledge of allegiance upon the advance, written consent of a parent.”

The Supreme Court passed, choosing not consider the claims of a former Palm Beach County high school student, Cameron Frazier.

The U.S. Court of Appeals for the 11th Circuit in 2008 had called the law “a parental-rights statute” because it “ultimately leaves it to the parent whether a schoolchild will pledge or not.” It found this a worthy end, writing that “a parent’s right to interfere with the wishes of his child is stronger than a public school official’s right to interfere on behalf of the school’s own interest.”

That decision cut away at precedent from a 1943 case holding that the government cannot compel a student to recite the pledge in violation of his or her conscience. The court there recognized a First Amendment right not to speak — a right not to be compelled by the government to engage in a personally objectionable message.

The fact that the Supreme Court chose not to take up Frazier, however, is not surprising. It hears only about 70 or 80 cases each term. Perhaps the case seemed too insignificant to garner the concern of four of the nine justices that are needed to hear a case, especially when compared to other First Amendment issues it is considering this term, such as a challenge to a federal law limiting spending by unions and corporations on political advertising.

Sadly, the high court’s decision is anything but trivial for teenagers who want neither to say the pledge nor to obtain parental permission. The Florida law denies minors the right to engage independently in their own form of political expression through silence.