Parents, Protests, and the Pledge

This week the 11th Circuit in Frazier v. Winn rejected a facial challenge brought by an eleventh grader who said that Florida's Pledge of Allegiance statute unconstitutionally required him to obtain written parental consent before he could be excused from reciting the Pledge.  The ruling would seem to contradict Virginia Board of Ed v. Barnette, which long ago held that state officials could not compel student speech, except the Eleventh Circuit framed the issue not as a student speech case, but as a "parental-rights" case:

Although the statute here generally requires students to recite the Pledge the statute also requires students to be notified that they might be excused from reciting the Pledge.  The statute then spells out how a student may be excused, that is, but getting his parent's consent.  Most important, the statute ultimately leaves it to the parent whether a school child will pledge or not. 

Here, unlike in Barnette . . . the refusal of students to participate in the Pledge - unless their parents consent - hinders their parents' fundamental right to control their children's upbringing.  The rights of students and the rights of parents - two different sets of persons whose opinions can often clash- are the subject of a legislative balance in the statute before us.  The State, in restricting the student's freedom of speech, advances the protection of the constitutional rights of parents: an interest which the State may lawfully protect.

I'm not wholly convinced by the court's attempt to distinguish Barnette, and wonder if this "parental rights" rationale is a way to side-step well established precedent.  The statue in Frazier allows parents to exempt their children from the Pledge requirement, but its a parent's fundamental right to control a child's upbringing that informed the legislature's decision to give parents a say in the first place.  But wouldn't that same fundamental right override a statute that allowed a student to withdraw from the Pledge without questioning whether she had parental approval?  And wouldn't that violate Barnette? 

-Kathleen A. Bergin

Comments

[John C]

Maybe I misunderstand your last hypo, but I don't see how Barnette speaks to the question of a parent forcing their child to pledge (where a statute does not require parental approval for withdrawal). Why would that situation violate Barnette?

[Kathy Bergin]

Barnette doesn't speak to a parent's involvement, but Frazier does. And if the parent's fundamental rights over children provide the basis for determining whether the child can be exempt from the pledge or not, doesn't that in effect make Barnette an empty vessel with respect to the rights school kids might have otherwise been able to claim? The state can't force the child to say the pledge (Barnette), but can enforce the parent's decision to not exempt the child from the Pledge (Frazier). How is that different than saying the state can force the child to say the pledge - so long as it has parental approval. We're only a hair removed from Barnette if its phrased that way, no?

I understand the desirability of parental control in child-rearing, but am trying to reconcile that with my libertarian sensibilities, particularly when it comes to patriotic expressions of government protest, even by school kids.

[John C]

I see your point, that Frazier seems to undermine what you see as the lesson of Barnette, but I would make the distinction that it doesn't "violate" Barnette, because Barnette did not speak to the issue of parental rights. The closest it came was in Frankfurter's dissent, which stated:

Parents have the privilege of choosing which schools they wish their children to attend. And the question here is whether the state may make certain requirements that seem to it desirable or important for the proper education of those future citizens who go to schools maintained by the states, or whether the pupils in those schools may be relieved from those requirements if they run counter to the consciences of their parents.

In any event, it sounds like the real issue you identify here is whether the student is sufficiently autonomous from the parent for First Amendment purposes so as to require respect for the student's desire not to Pledge. Frazier essentially treats them as an undivided whole, subject to the decision of the parent. Like my mother used to say "You may live in America, but this household is not a democracy." You seem to lean towards viewing the child as a separate unit from the parent for First Amendment purposes. This is not my field of expertise, but that would seem to have novel implications for a whole host of issues.

[Kathy Bergin]

The point you raise in your last paragraph is where the problem lies - determining whether and when the student should be viewed as an independent unit for First Amendment or other constitutional purposes. I wouldn't necessarily endorse an absolute rule of student autonomy in every case, and as it stands now the constitution leaves room for parental involvement in a whole host of situations: minors seeking abortion and access to sexually explicit material are two examples. Assuming that makes sense, do the concerns present in those cases apply with equal force when a student declines to pledge the flag? I wouldn't think so, but the difficulty would be in determining when to draw the line at parental involvement in closer cases. But I suppose that's always the question . . .

A whole host of constitutional rights, when exerised by children, at least encourage parental involvement (parental consent abortion requirements for example). There are a whole host of legal issues where the constitutional rights

I wouldn't I wouldn't i wouldn't Though I would tend to run my own household like your Mom, I agree wholeheartedly with your Mom's words of wisdom when it comes to running a household, and I wouldn't agree with treating children as wholly autonomous for First Amendment purposes or otherwise.

[John C]

One thing that immediately comes to mind is that age should play a role (perhaps a determinative one) in any determination of the "First Amendment autonomy" of children (or any other parents' rights context). The older you get, it seems reasonable that the more autonomy you should get.

That could be tough in a high school setting, though . . . while 14 year olds are obviously very different from 18 year olds, it's tough having two (or more) sets of rules for one student body.