PHILADELPHIA A federal appeals court yesterday threw out a state law that required schoolchildren to either recite the Pledge of Allegiance or sing the national anthem daily.
A three-judge panel of the 3rd U.S. Circuit Court of Appeals unanimously ruled that the law violated the free-speech rights of students and the right of private schools to "free expressive association."
The Pennsylvania law, which was passed and signed into law in 2002, allowed schools to opt out of the requirement for religious reasons but not for secular reasons. It also permitted students to decline on the basis of religious conviction or personal belief, but required the district to inform the student's parents.
"It may be useful to note our belief that most citizens of the United States willingly recite the Pledge of Allegiance and proudly sing the national anthem," Judge Dolores K. Sloviter wrote in The Circle School v. Pappert. "But the rights embodied in the in the Constitution, particularly the First Amendment, protect the minority those persons who march to their own drummers.
"It is they who need the protection afforded by the Constitution and it is the responsibility of federal judges to ensure that protection."
On Feb. 6, 2003, one day before the law was to take effect, U.S. District Judge Robert F. Kelly signed an injunction barring it from being implemented. In July 2003, Kelly ruled the law unconstitutional, saying the threat of parental notification would coerce students into taking the pledge and thereby violate their right to free speech. The appeals court agreed.
"Obviously we're disappointed," said Sean Connolly, spokesman for Attorney General Jerry Pappert. "We will review the court's decision and discuss it with officials from the Department of Education to determine whether we will seek an appeal with the U.S. Supreme Court."
The lawsuit challenging the requirement was filed in February 2003 by high school sophomore Max Mishkin of suburban Philadelphia; the Circle School, a private school in Harrisburg with no set curriculum or tests; and a teacher at the school. Several other private schools joined, objecting to the mandatory recital of the pledge.
Jim Rietmulder, a Circle School staff member and founder, applauded the ruling.
"I think that what the appeals court found, and we're in complete agreement with, is that there is no harm in reciting the pledge, and there's no harm in singing the national anthem," he said. "The harm is to the Constitution and the Bill of Rights when we try to force people to do those things.
Larry Frankel, legislative director for the Pennsylvania chapter of the American Civil Liberties Union, which represented the Circle School in court, called the decision "a victory for the First Amendment, and a victory for students who have the right to exercise the First Amendment without their parents being notified."
The legislation was introduced by state Rep. Allan Egolf, R-Perry, who said he drafted the measure after talking to veterans who told him that many schools no longer routinely recite the pledge.
"The judges are saying that somehow it's punishment to keep parents informed of children's activities. I think that's pretty bad," he said. "To me, the key to education ... is to get parents involved."
Egolf, who is not seeking re-election, said he was not sure whether he would reintroduce a similar measure before the end of his current term in the event that a U.S. Supreme Court appeal is unsuccessful.
More than 25 states require the pledge to be recited during the school day, according to the Education Commission of the States, a nonprofit national association of state education officials.
"There's a great irony in violating people's freedom of speech in order to instill in them an appreciation of freedom of speech," Rietmulder said.