Below The Beltway

The Supreme Court has declined to review a case challenging a law requiring students to recite the Pledge of Allegiance:

WASHINGTON — The Supreme Court has rejected an appeal to review a Florida law that requires public school students to recite the Pledge of Allegiance each day unless they have their parents’ written permission excusing them.

The justices declined Monday an appeal filed by the American Civil Liberties Union of Florida on behalf of a high school student removed from his math class because he remained seated during the pledge.

A federal appeals court upheld most of the law. The ACLU said that ruling, if left undisturbed, would undermine the Supreme Court’s 1943 ruling that schoolchildren could not be forced to salute the flag and say the pledge.

That case, of course, West Virginia State Board of Education v. Barnette in which the Court said:

Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. 14 If official power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, but must be largely discretionary with the ordaining authority, whose power to prescribe would no doubt include power to amend. Hence validity of the asserted power to force an American citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question.

(…)

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 or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. 19

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

It seems fairly clear, then, that students cannot be compelled to recite the Pledge of Allegiance. The fact that the Florida law allows children to be exempted if their parents request it does not, to me, seem to be a sufficient protection of the minor’s rights under the First Amendment. It’s unfortunate that the Supreme Court refused to hear this case.