Direct From Florida: More Civil Rights Violations

Direct From Florida: More Civil Rights Violations

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on July 30, 2008. There must be something in the drinking water of Florida. Its legislators are forever looking for ways to circumvent the Bill of Rights and Supreme Court decisions. And its judges go along with some of these efforts. Take, for example, the statute that the Florida Legislature adopted during World War II on “patriotic programs” in schools. The law requires all students from kindergarten to twelfth grade to recite the Pledge of Allegiance, unless a parent excuses a student in writing. When the Pledge is recited, all students must stand “at attention” to “show full respect to the flag.” Fla. Stat. § 1003.44(1). The Supreme Court addressed the issue of whether a state could compel a student to recite the Pledge, also during World War II. The answer was no, on Free Speech grounds. Virginia State Bd. of Educ. v. Barnette, 63 U.S. 624 (1943). More recent decisions have established the right of the student to remain seated and silent during the recitation of the Pledge. See, e.g., Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004). As expected, a student, a high school junior, challenged the constitutionality of the entire Florida statute. He cited the cases permitting him to sit and argued that he did not have to obtain his parent’s consent for him to exercise what is a fundamental right. The state countered first by arguing that the standing requirement should be construed not to apply to excused students. Its second line of defense was that the potentially bad language requiring all to stand could be severed from the entire statute, thereby saving the other language. Third it claimed that parents have a fundamental right to direct the education of their children and that this right trumped the right of their children to speak out. On July 23, 2008, the Court of Appeals for the Eleventh Circuit ruled and gave more to the state than to the student. Frazier v. Winn, No. 06-14462 (11th Cir. 2008). First, it held for the student on the standing requirement. Fairly read, the statute required all students to stand- a violation of the Constitution. However, the court simply excised the offensive language from the statute, preserving the balance. There was no evidence that the Florida Legislature felt so strongly about the standing requirement that it would not have adopted the statute without the requirement. On the third point the court agreed with the state also. Parents do have a fundamental right “to direct the education and upbringing of one’s children.” The Supreme Court so held long ago in Meyer v. Nebraska, 262 U.S. 390 (1923). It continues to affirm this right. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (mandatory schooling trumped by religious beliefs). The court distinguished Barnette as involving the conflict between an individual right and the state’s authority to act. “(T)he refusal of (plaintiffs) to participate in the ceremony (did) not interfere with or deny rights of others to do so.” Frazier apparently did present such an interference. Unfortunately, the court did not describe the interference, other than to imply that it was about what “civic values” were to be taught in school. Framing the interference this way almost guarantees that the parent will prevail. It does not matter that a student may want to recite the Pledge. If his or her parent says no, in writing, “the school must excuse the student.” The decision could have far-reaching consequences. What if a school district board adopts a rule that students cannot wear black armbands, to protest America’s fighting in Iraq, without the written consent of a parent? What if the parent refuses to consent because he or she believes that supporting the government’s policy is a higher civic value than quietly speaking out against the policy, at least in school? Does Frazier point the way for the legislators of Florida and other governments to overrule Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)? The court did throw a bone to students on the last point. A “specific student or a specific division of students” may be able to challenge the statute as applied to the student or the division. A “mature high school student” or a group of such students may argue in a new suit that consent for them is a violation of their Free Speech rights. On the other hand, elementary and middle school students are most likely out of luck.