Published Online: September 22, 2004
Published in Print: September 22, 2004, as Pa. Weighs Appeal of Ruling Invalidating Pledge Mandate

Law Update

Pa. Weighs Appeal of Ruling Invalidating Pledge Mandate

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Pennsylvania officials were still debating last week whether to keep up their legal fight to defend a state law requiring all schools to lead students in the Pledge of Allegiance each day and to inform parents if their children declined to participate.

The 2-year-old statute was struck down as unconstitutional in a federal district court last year. A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, unanimously affirmed that ruling last month.

Notifying the parents of students who decline to recite the pledge or salute the flag "clearly discriminates among students based on the viewpoints they express," the appeals panel found. For that reason, it held, the law impermissibly infringes students’ First Amendment right to free speech.

The appeals panel also agreed with the lower court that the pledge statute violates the First Amendment rights of the six private schools that joined with four public and private school parents in challenging the law.

Mandating daily recitation of the pledge tramples on the schools’ freedom of association because it requires them to adhere to a particular method of instilling civic values that goes against their philosophies of education, the appeals court said. The state’s interest in teaching patriotism and civics in all schools is a compelling one, it held, but less restrictive means exist to pursue it than to mandate "the rote recitation of prescribed words."

The 2002 law, which the state has been ordered by the district court not to enforce, requires schools to provide for the recitation of the pledge or the singing of the national anthem each day. It exempts nonpublic schools for which displaying or pledging allegiance to the United States’ flag "violates the religious conviction on which the school is based."

Students may also opt out of the pledge "on the basis of religious conviction or personal belief," the statute says. A 1943 ruling by the U.S. Supreme Court made clear that schools cannot compel individual students to recite the pledge.

"[M]ost citizens of the United States willingly recite the Pledge of Allegiance and proudly sing the national anthem," the appeals court’s Aug. 19 ruling says. "But the rights embodied in the Constitution, most particularly in the First Amendment, protect the minority—those persons who march to their own drummers. It is they who need the protection afforded by the Constitution and it is the responsibility of federal judges to ensure that protection."

A spokesman for the Pennsylvania attorney general said last week that the office was still discussing whether to ask the full appeals court to rehear the case or the Supreme Court to review the ruling.

Vol. 24, Issue 04, Page 16

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