Pennsylvania pledge of allegiance law
tbwolff at UCDAVIS.EDU
Sun Nov 17 12:37:00 PST 2002
> Student: Please don't tell my father that I'm not saying the Pledge of
> Allegiance, because he'll beat me up for being unpatriotic.
> Teacher: I'm sorry, I have to. Pennsylvania law forces me to.
> Doctor: I'm sorry to have to inform you that your student is now in a
> permanent vegetative state because of having been beaten to a pulp by her
> Judge who is hearing the case in which Pennsylvania is sued for
> damages: ______?
I'm not even sure it's necessary to spin out such a scenario to identify a
problem here. (In Sandy's hypo, I take it that the "burden" on Speech
Clause rights would be particularly acute in an as-applied challenge. I'm
not entirely sure that anyone other than the father would be responsible in
damages for his supervening criminal assault, however.)
It's enough, I would think, that the school has singled out a particular
viewpoint -- subscription to the form of patriotism embodied in the salute
-- and imposed a singular notification requirement upon dissenters that
might reasonably be thought to dissuade some kids (perhaps many) from
expressing such dissent. This is Tinker, not Hazelwood -- there is no
legitimate pedagogical purpose in favoring children with a certain type of
patriotic view and subjecting others to special burdens.
With all respect to Mark Scarberry, I disagree that public schools have a
legitimate purpose in pressuring children to adopt a certain set of
political views. They have a legitimate purpose in teaching children about
such views, so as to enable them to make informed decisions about their own
-- and even to make clear the view held by school authorities in order to
offer it as an attractive belief system to emulate -- but not to single out
political dissenters for special burdens.
The case would be a more interesting one if the school notified EVERY
child's parent about the child's pledge decision -- whether she recited the
pledge or not -- so that the requirement would be putatively viewpoint
neutral. I still fail to see a legitimate pedagogical purpose, but I think
you would have to argue that the law effectively burdens dissenting
viewpoints before the school would even be required to make such a showing.
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