Pennsylvania pledge of allegiance law

[Scarberry, Mark]

 I'll agree that the bill, were it to become law, would violate the 1st
Amendment as applied to private schools.

But as applied to public schools the bill does not seem to violate Barnett
directly, because it allows students to opt out, and a requirement that
schools notify parents of their children's decision to opt out is not, in my
view, plainly unconstitutional. Public schools have an interest in promoting
patriotism. Most parents do, too. Parents also have a legitimate interest in
what their children are doing in school. For the government to decide that
it will notify parents of the children's decision to opt out does not, at
first and perhaps second glance, seem to me to violate the 1st Am. Note that
the school is not requiring that the students tell their parents, or that
the students obtain parental permission before opting out. The government's
decision to notify parents seems to me to be more paternalistic than
necessary, especially as applied to older children. But unconstitutional? I
doubt it.

Mark Scarberry
Pepperdine

-----Original Message-----
From: Bryan Wildenthal
To: CONLAWPROF at listserv.ucla.edu
Sent: 11/16/2002 1:36 PM
Subject: Re: Pennsylvania pledge of allegiance law

I agree with Tobias that the notification provision is plainly
unconstitutional.

Also, requiring private schools to even offer the pledge ceremony to
students who want to participate is plainly unconstitutional.  Private
schools collectively, like private persons (including students)
individually, enjoy the right not to express patriotic sentiments.

To the extent the law would merely require public schools, as arms of
the
state, to conduct a pledge or similar ceremony for those students who
freely
choose to participate, I think it's constitutional, subject to a
possible
right of teachers to opt out on conscientious grounds (that's a
genuinely
difficult issue in my view).

But query why the "peer pressure/coercion" rationale in school prayer
cases
like Lee v Weisman would not also render allegedly "voluntary" group
patriotic expressions in the K-12 setting de facto "coercive" and thus
unconstitutional.  Perhaps that illustrates why the prayer cases,
despite
the mischievous and incoherent reliance on "coercion" in Lee, must in
fact
rest on a non-endorsement theory, not on any theory of
attenuated/implied
coercion.  Government and public schools are, of course, free to promote
patriotism, as long as they do not use truly coercive measures.  But if
a
voluntary group exercise by students is "coercive" as implied by Lee,
then
Lee proves too much and would invalidate the time-honored practice of
voluntary group pledges of allegiance by K-12 students.

Of course, the endorsement theory plainly dictates the
unconstitutionality
of the inclusion of "under God" in the governmentally promoted pledge.
That
has been an offensive and gratuitous addition anyway (since it was added
by
Congress in 1956 in a fit of Cold War religiosity, 64 years after the
pledge
originated in 1892), since it has nothing properly to do with patriotism
and
instead smacks of promoting official religiosity.  Indeed, it undermines
patriotism and national unity by excluding Americans, like me, who do
not
believe in any "god" (or who do not believe in the monotheistic "God"
referred to by the phrase "under God," a particular concept of religious
submission quite alien to many religions, such as many East Asian and
traditional American Indian religions).  Ever since I was a schoolboy, I
have simply fallen silent when those words in the pledge are spoken, and
every time (to this day) that I recite the Pledge it gratuitously and
offensively highlights and impresses my religious nonconformity upon me
and
those who may notice my conspicuous silence, during an occasion when I
should be able to share undiluted sentiments of patriotic unity with my
fellow citizens.  Private schools are, of course, perfectly free to
include
"Under God," and students or anyone have the constitutional right to add
those words on their own individually, if they choose to associate their
religious beliefs with their patriotic sentiments.  But it cannot
constitutionally be part of the governmentally prescribed or promoted
ceremony.  Some people may view this as a small or trivial or nitpicky
point, and I obviously would not win any opinion polls or elections on
it,
but I think it is hard to point to any more pure and obvious violation
of
the government's duty of religious neutrality.

Bryan Wildenthal
Thomas Jefferson School of Law

> -----Original Message-----
> From: Tobias Barrington Wolff [mailto:tbwolff at UCDAVIS.EDU]
> Sent: Friday, November 15, 2002 2:05 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Pennsylvania pledge of allegiance law
>
>
> CNN reports the following.  Given the unambiguous right that
> students enjoy
> not to recite the pledge under Barnette, I wonder how perturbed list
> members are by the "parental notification" provision.  Why
> should a student
> have to "out" her conscientious objection to her parents in order to
> exercise her Speech Clause rights?  Whatever state interests
> might support
> parental notification provisions in the abortion context seem entirely
> absent here.
>
> * * *
>
> HARRISBURG, Pennsylvania (AP) -- Students in private and
> public schools
> would be required to recite the Pledge of Allegiance or sing
> the national
> anthem each morning under a bill unanimously passed this week
> by the state
> Senate.
>
> Republican Rep. Allan Egolf said he introduced the measure, which also
> would mandate the display of the American flag in all
> classrooms, after
> finding that some schools did not ask students to recite the pledge.
>
> "It's getting away from teaching about what our country
> stands for, what
> our founders did, and why we have the country we have," Egolf said.
>
> The measure would allow students to decline reciting the pledge and
> saluting the flag on the basis of religious conviction or
> personal belief,
> but school officials would have to notify their parents.
>
> The American Civil Liberties Union has said that it believes
> the parental
> notification requirement would discourage students from
> exercising their
> right not to participate.
>
> The House approved a similar bill but must agree to the
> changes before the
> bill goes to Gov. Mark Schweiker for final approval.
>
> (http://www.cnn.com/2002/EDUCATION/11/15/pennsylvania.patrioti
sm.ap/index.html)