Whose Right Does Barnette Protect: Student or Parent?

[Robert Sheridan]

I think I can smell a socially, meaning politically, conservative  
evasion when found lying across the road, so I tend to agree with  
Malla's observation to that effect.  We simply cannot go around  
recognizing the rights of disfavored minorities, such as young  
(American) people, who may thumb their noses with impunity at enforced  
participation in government sponsored rituals, just as, I believe,  
Justice Frankfurter feared, in Gobaitis and his dissent in Barnette.   
If we taught young Americans that they have rights to decry government  
symbolic ritualization, where would that lead?  To anarchy, that's  
where.

Nor women.  Justice Blackmun wrote Roe v. Wade as though he was coming  
down ringingly not on the side of a woman's right to choose but a  
(likely white male American, at the time) doctor's right to advise a  
woman what to choose, which strikes me as being a little different.   
If he knew about Indian, Chinese, and Filipino ancestry male and  
female doctors abounding in America's hospitals today I wonder whether  
he would've taken the same tack, but I hesitate to presume.

We have a habit of proclaiming broad rights in the abstract but  
undercutting them, not to say gutting them, in practice.  I've heard  
the Fourth Amendment guarantee against unreasonable search and seizure  
described as Swiss Cheese, and the Roe doctrine described (by none  
other than the late Rehnquist, CJ) as a Potemkin village of a  
doctrine, but why start in.

Perhaps we should try the trimester approach with teenagers, or ask  
whether they're viable before recognizing that they have rights.  For  
the first six years, they have no rights to refuse to Pledge; for the  
next six years maybe, depending on whether they bring a note from a  
parent, and for the final six years, they can remain seated if they  
like, up to them.  Sort of a reverse Roe which the government has to  
respect.  Except for the conservative school districts, of course,  
where intelligent design may be big.

Such a shame that we lost George Carlin recently, don't you think?

rs
sfls






On Jul 24, 2008, at 11:39 AM, Michael masinter wrote:

> 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
>
>
>
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