Whose Right Does Barnette Protect: Student or Parent?

[Michael masinter]

Yesterday the Eleventh Circuit reversed a district court decision that had
held
facially unconstitutional a Florida statute requiring all public
school children to recite the pledge of allegiance unless a particular
student has a written parental requested to be excused; students who
object to reciting the pledge but who lack the required written parental
request (like high school student plaintiff) must recite it. The court
characterized the Florida law as "a parental-rights statute" that did no
more than effectuate the constitutional right of a parent to control the
education of her child, and therefore not controlled by Barnette or other 
compelled speech cases.  It held instead: 

We conclude that the States interest in recognizing and protecting the
rights of parents on some educational issues is sufficient to justify the
restriction of some students' freedom of speech.


http://www.ca11.uscourts.gov/opinions/ops/200614462.pdf

Full disclosure -- the Florida ACLU, on whose board I sit, brought the
facial challenge.

I am curious to know what others think of the court's reasoning.  Does
Barnette's right belong only to the student's parent?  The panel
speculates (but does not decide) that a mature high school student might
have an as applied challenge to the statute, but relying on parental
notice / consent statutes relating to abortion, concluded that the burden,
if any, on the students who object to mandatory recitation was
insufficient to justify a facial challenge.

Off list replies are welcome, as are replies to the list.

Mike

Michael R. Masinter			3305 College Avenue
Professor of Law			Fort Lauderdale, FL 33314
Nova Southeastern University		(954) 262-6151 (voice)
Shepard Broad Law Center		(954) 262-3835 (fax)
masinter at nova.edu			Chair, ACLU of Florida Legal Panel