11th Circuit: State can't force students to stand for Pledge

By The Associated Press
07.24.08

ATLANTA — A federal appeals court yesterday invalidated part of a Florida law requiring public school students to stand and recite the Pledge of Allegiance, but the panel declined to rule on whether the rest of the statute is constitutional.

That issue could resurface in a future case, said a lawyer for the American Civil Liberties Union representing a former student who challenged the law.

A three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta agreed with a federal judge's decision that a provision requiring students and other "civilians" to stand at attention during the pledge is unconstitutional.

The judges, though, ruled in Frazier v. Winn that that doesn't mean the rest of the law must be stricken. They left standing provisions that require the pledge to be recited at the beginning of each day, but also require that students be excused upon a parent's written request.

They wrote that protecting parental rights can justify restricting students' freedom of speech, but stressed "we decide and hint at nothing about the pledge statute's constitutionality as applied to a specific student or a specific division of students."

That "invites more litigation as to whether the statute can be applied to any student," said ACLU lawyer Randall Marshall.

Florida Education Commissioner Eric J. Smith said in a statement that he was pleased the appellate court "recognized the balance between the exercise of free speech and parents' right to direct and oversee their child's education and civic values."

The ACLU sued on behalf of a student who did not have a parental excuse and was punished for refusing to stand during the pledge.

Teacher Cynthia Alexandre told Cameron Frazier, then a 17-year-old junior at Boynton Beach High School, that he was "so ungrateful and so un-American" after he twice refused to stand for the pledge, according to the lawsuit.

U.S. District Judge Kenneth Ryskamp struck down the compulsory pledge law on June 1, 2006. Ryskamp ruled the law and a similar Palm Beach County School Board policy violated the First and Fourth Amendments.

The appeals court interpreted the law largely as a parental-rights issue.

"Most important, the statute ultimately leaves it to the parent whether a schoolchild will pledge or not," said the opinion by Chief Judge J.L. Edmondson and joined by Judges James C. Hill and Arthur L. Alarcon of the 9th Circuit.

"The state, in restricting the student's freedom of speech, advances the protection of the constitutional rights of parents: an interest in which the state may lawfully protect," the opinion said.

The state argued that the requirement that "civilians" stand doesn't apply to students who had been excused from reciting the pledge.

However, the appeals court noted that "No limiting terms apply to 'civilians'; it seems easily to cover all students."

Although Frazier’s general challenge to the law on its face failed, his claim as to how the statute was specifically applied to him now returns to the federal district court.