Court Upholds Fla. Law Requiring Parental Permission for Students to Opt Out of Pledge of Allegiance

By Mark Walsh — July 24, 2008 1 min read
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A federal appeals court has upheld a Florida law that requires students to have parental permission to opt out of daily recitations of the Pledge of Allegiance in schools.

“We conclude that the state’s 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,” a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, said in Frazier v. Winn.

An 11th grader in Palm Beach County, Fla., challenged the statute as unconstitutional on its face. A federal district court ruled for the student, but in its July 23 decision, the 11th Circuit court upheld the parental-permission requirement.

The court said it saw Florida’s law as a “parental-rights statute” that could be distinguished from the flag salute and Pledge-recitation requirement struck down by the U.S. Supreme Court in the 1943 case West Virginia State Board of Education v. Barnette .

“Here, unlike in Barnette and in the cases cited by plaintiff, the refusal of students to participate in the Pledge—unless their parents consent—hinders their parents’ fundamental right to control their children’s upbringing,” the court said.

The court did strike down a provision of the Florida law that it interpreted as requiring all students to stand during the Pledge, even those who had their parents’ consent not to join the recitation.

“The ‘standing at attention’ provision should not be enforced,” the court said. “But we conclude that this portion of the statute may be severed, leaving the statute otherwise enforceable.”

A version of this news article first appeared in The School Law Blog.