The Pledge of Allegiance Revisited: Speech Rights vs Parental Rights
Indiana Law Journal, Vol. 97, p. 967, 2022
University of Miami Legal Studies Research Paper No. 3941233
37 Pages Posted: 16 Nov 2021 Last revised: 5 May 2022
Date Written: October 12, 2021
Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states – Texas and Florida – students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.
The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the substantive due process rights of parents. These mandatory pledge laws are viewpoint-based and therefore presumptively unconstitutional. While the free speech rights of students are more circumscribed than adults, none of the established justifications for curtailing student speech rights at school apply in this case. On the contrary, forcing students to pledge against their will exemplifies all the harms of compelled speech. Finally, parents’ constitutional right to control the upbringing of their children is meant to protect parents from the state, not to empower parents to trample on the rights of their children. In the end, the parental permission rule is simply a pretext for the state’s own viewpoint-based compulsion.
Keywords: First Amendment, Free Speech, speech, student speech, compelled speech, pledge, substantive due process, parental rights, schools, parents, black lives matter, Texas, Florida
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