The Pennsylvania Mandatory School Pledge of Allegiance Law:
Why A Federal Appeals Court Was Right to Strike It Down

In the patriotic fervor that followed the attacks on the World Trade Center Towers and the Pentagon, Pennsylvania enacted a law that compelled every private and public school in the State to hang an American flag in each classroom. It also compelled each school to require children to recite the Pledge of Allegiance or sing the national anthem every morning.

The law included a few exceptions: Private and parochial schools were allowed to opt out on religious ground. Individual children were permitted to opt out on religious or personal grounds. And children could simply refuse to recite the Pledge, but those who did so were reported to their parents.

Given the circumstances, the passage of a law of this kind was to be expected. The problem with the law is that it compelled expression, and such compulsion violates the First Amendment--and indeed that which is best about the United States.

Patriotic expressions are admirable in a time of war. Nevertheless, the State runs afoul of the Constitution when it tries to compel such expressions.

The Suit Challenging the Law, and the Court's Decision

After the Act was passed, a public high school student, two parents of private school students, and several non-religious private schools challenged it on First Amendment grounds. And recently, a panel of the U.S. Court of Appeals for the Third Circuit correctly held that the law was unconstitutional as applied to all these plaintiffs.

The relevant U.S. Supreme Court precedent was decided back in 1943 - it is West Virginia Board of Education v. Barnette. There, the Supreme Court struck down a West Virginia law that had mandated that schoolchildren recite the Pledge of Allegiance. (Unlike the Pennsylvania post-9/11 law, however, that law was without exceptions.)

The Barnette Court explained its ruling in memorable language: "To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. . . . . If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . ."

Later, the Court also held in a similar context, in Tinker v. Des Moines Indep. Comty. Sch. Dist., that minors' First Amendment rights - while less strong than those of adults, still should be recognized. In particular, the Court held that a student could wear a black armband in protest of war.

Given the clear holdings of Barnette and Tinker, the only question the Pennsylvania case posed for the courts was this one: Did the law's exceptions save it from being struck down as unconstitutional? As I will explain, the Third Circuit was entirely right to answer in the negative.

The Expressive Association Rights of the Schools and the Children

The First Amendment establishes the right to freedom of speech. It also establishes the right to expressive association - that is, to associate together with like-minded others to speak or demonstrate.

The court held correctly that these rights were violated both with respect to the children, and with respect to the private schools. Children were forced to say the Pledge - or be reported to their parents. Certainly, as the court held, that is compelled speech - not free speech.

Meanwhile, the court also found a constitutional violation in the laws' requiring the private schools to include a mandatory Pledge in their school day - even if their mission was consequently undermined.

Suppose the school's mission was to teach children the "freedom of choice." That mission would be directly undermined if children were forced to say the pledge, or be reported for choosing not to.

Thus, the schools' right of expressive association - their right to define their own curriculum and mission - was violated. (Due to this holding, the court did not go on to address another argument - that the Establishment Clause allowed the private schools to be exempted, on religious grounds, from this general law.)

The Commonwealth's Three Weak Defenses

The Commonwealth asserted three defenses. All three, however, were exceptionally weak.

First, the Commonwealth argued that the pledge (and the anthem) were of short duration, and therefore were not a significant imposition on the private schools' missions. But the court correctly ruled that length doesn't matter. The point was that the speech - however brief - was compelled.

Second, the Commonwealth school argued that the private schools were free to offer a disclaimer along with the mandatory pledge - to the effect that forcing the children to recite the Pledge did not necessarily accord with the school's mission or beliefs. Again, however, the court correctly said the chance to add a disclaimer doesn't matter. The point is simple: If the speech is compelled, it isn't free. And violating the right to free speech, of course, violates the First Amendment.

Third, and finally, the Commonwealth said that the children's speech was free because they could always refuse to say the Pledge - even though that would result in a report to their parents. Making an analogy to abortion law, the Commonwealth noted that it is constitutional to require a minor to notify a parent before an abortion.

So, the Commonwealth asked, why isn't it similarly constitutional to require a minor to notify a parent after a child refuses to recite the Pledge? In essence, the Commonwealth tried to argue that there is a generalized right of parents to control their children that would tie the two disparate areas of law together.

The court rightly rejected this analogy. It pointed out that the abortion notification cases were based on constitutional Due Process - a complex area that considers when a law places too heavy a burden on abortion rights.

In contrast, the First Amendment standard is much simpler: Minors, too, have speech rights. Speech cannot be compelled. A threat - even if it is a threat to report to parents - counts as compulsion. It is that simple.

The Law Not Only Compelled Speech, But Discriminated Based on Viewpoint

The court also pointed out found that the parental notification provision was viewpoint-discriminatory. And restrictions on speech that discriminate based on viewpoint are especially disfavored under First Amendment doctrine - for the obvious reason that a slanted speech-restricting law is even worse than a neutral speech-restricting law.

In this case, the court found viewpoint discrimination in the fact that those students who did recite the Pledge, were able to do so without parental notification. But those who refused to recite the Pledge, were subject to such notification.

The Commonwealth offered no justification for the viewpoint discriminatory notification requirement - except to call it an administrative function. As a result, the court held that it had failed to prove, as required, that there was a compelling interest on its part that outweighed the First Amendment rule against compelling speech.

Pennsylvania Should Have Known Its Law Violated the First Amendment

Let's be honest. This was a law that Pennsylvania legislators surely were informed was in all likelihood unconstitutional. Their counsel must have made clear to them, if they bothered to ask, how strong the relevant Supreme Court precedents are - and how weak any defenses the Commonwealth could raise would be.

But the legislature forged ahead anyway, because it thought the law sent patriotic messages at a time when patriotism was at its height. As with most legislators, they assumed that the courts would clean up any constitutional violations. And if the law were struck down, so what? At least, in their view, they had proven their patriotism. Right?

Wrong. What they did was not patriotic at all. It was a betrayal of what our country stands for - of what distinguishes the United States from its terrorist enemies. What the United States does not - and under its Constitution, cannot - do is to make infidels of those who have a viewpoint that is not in the mainstream.

The closing of the Third Circuit's opinion nicely summarizes the point. The court expressed its belief "that most citizens of the United States willingly recite the Pledge of Allegiance and proudly sing the national anthem." But it properly cautioned that "the rights embodied in the Constitution, most particularly in 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 the federal judges to ensure that protection."

That is a far better response to 9/11 than the Pennsylvania legislature's misguided - and unconstitutional - statute.