Pennsylvania pledge of allegiance law

[Tobias Wolff]

Sandy writes:

> 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
> father.
>
> 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.

-- T