381 F.3d 172 | 3rd Cir. | 2004
HONORABLE VICKI PHILLIPS, Circuit Judges, and OBERDORFER,
District Judge [*] Secretary of Education Designee for the Commonwealth of Pennsylvania; JANE
M. ALLIS, Member, State Board of (Filed August 19, 2004) Private Academic Schools; DENISE BIONDO, Member, State Board of Private Academic Schools; BRYCE Gerald J. Pappert HATCH, Member, State Board of Attorney General
Private Academic Schools; MARQUITA Howard G. Hopkirk (Argued) JONES, Member, State Board of Private Deputy Attorney General
Academic Schools; CAROLYN PASANEK, Member, State Board of Private Academic Schools; ROBERTA L. SCHOMBURG, DR., Member, State [*] Hon. Louis F. Oberdorfer, Senior Board of Private Academic Schools; Judge, United States District Court for KIM SM ITH, Member, State Board of the District of Columbia, sitting by Private Academic Schools; TED designation. Amanda L. Smith provide for the recitation of the Pledge of Deputy Attorney General Allegiance or the national anthem at the Calvin R. Koons beginning of each school day. Like similar Senior Deputy Attorney General statutes in other states, Act 157 allows John G. Knorr, III private and parochial schools to opt out of Chief Deputy Attorney General its requirements on religious grounds, and Office of Attorney General gives students the option of refraining Appellate Litigation Section from participating in the recitation and Harrisburg, PA 17120 saluting the national flag on religious or
personal grounds. § 7-771(c)(1)-(2). [1] Attorneys for Appellants How ever, it also requires school supervising officials to notify, in writing, Joyce S. Meyers parents or guardians of those students who Michael K. Twersky (Argued) have declined to join in the recitation or Robert P. Blood salute the flag. § 7-771(c)(1). Montgomery, McCracken, Walker &
We hold that the parental Rhoads, LLP notification provision of the Act violates Philadelphia, PA 19109 the school students’ First Amendment right to free speech and is therefore
Attorneys for Appellees unconstitutional. We also hold that certain of the Act’s remaining provisions violate
Stefan Presser private schools’ First Amendment right to American Civil Liberties Foundation of free expressive association. We will Pennsylvania therefore affirm the District Court’s Philadelphia, PA 19107 judgment. Attorney for Appellees BACKGROUND 24 Pa. Cons. Stat. Ann. § 7-771(c)
OPINION OF THE COURT
reads as follows: which the school is based. (1) All supervising officers § 7-771(c). and teachers in charge of
Subsection one requires all public, private or parochial Pennsylvania schools to conduct a schools shall cause the Flag recitation of the Pledge of Allegiance or of the United States of the national anthem at the beginning of America to be displayed in each school day. Students may decline every classroom during the such recitation for religious or personal hours of each school day reasons, but their refusal would be and shall provide for the reported to their parents through written recitation of the Pledge of notification from their schools. Subsection Allegiance or the national two allows private and parochial schools anthem at the beginning of to decline displaying the national flag, each school day. Students reciting the Pledge of Allegiance, or may decline to recite the saluting the flag on religious grounds. Pledge of Allegiance and may refrain from saluting Prior to the final passage of Act the flag on the basis of 157, which amended Section 7-771(c) to religious conviction or its current form, Representative Allan C. personal belief. The Egolf of the Pennsylvania House of supervising officer of a Representatives, who sponsored and school subject to the introduced the bill in the Commonwealth’s r e q u i r e m e n t s o f t h is House, stated that under previously- subsection shall provide existing provisions, schools were not written notification to the required to have a flag in every classroom parents or guardian of any and recite the Pledge of Allegiance or the student who declines to national anthem every day: recite the P le dge of
This bill would require [that Allegiance or who refrains every school day is started from saluting the flag. with the Pledge or national anth em.] It is not a
(2) This subsection shall not require m e n t t h a t [the apply to any private or students] do the pledge, but parochial school for which it is a requirement that the the display of the flag, the school offer it. Current law recitation of the Pledge of does not require that. Allegiance or the salute of the flag violates the App. at 78. Responding to another religious conv iction on representative’s question regard ing
students’ refusal to participate in reciting anything else, if the student the Pledge or anthem, Egolf further stated does not want to participate that the only way a student could do so, in class, the teachers do under the Act, would be to get the whatever they can to get permission of his or her parents: them to participate, so I
would assume they would Mr. VITALI. Now, do the same here, unless the this bill, as I understand it or parents have actually opted as I read it quickly, if a the student out of it. But, student did not want to you know, that is up to them r e c ite the P led ge o f locally. You cannot make a Allegiance, the only way he person say something. I could not do that would be suppose, but if they stand t o g e t h i s p a r e n t s ’ there and do not create a permission not to do it? disturbance, that is up to the Mr. EGOLF. Right. teacher. Maybe for religious reasons Mr. VITALI. What or whatever, so if the would be the sanctions for p a r e n t s w a n t t o – noncompliance . . . . Apparently, there are some religions that do not do the Mr. EGOLF. It pledge, so they could opt w o u l d b e w h a t e v e r their child out of that. sanctions the school does
for other disciplinary things. . . . . . . . [I]t is the local school’s Mr. VITALI. So if determination how they you had a [high school] want to handle it. senior who, for whatever
Mr. VITALI. So the misguided or exploratory law itself does not provide reasons, decided he simply any sanctions? did not want to do this and his parent would not give Mr. EGOLF. There him permission not to, he is no punishment in the bill; could be compelled to say nothing specified. It is just the Pledge of Allegiance? l i k e a l l t h e o t h e r
requirements in school. Mr. EGOLF. Well, it Again, it is the local is offered for them. I school’s determination how assume . . . it is up to the they want to handle any classroom teacher. Just like disciplinary action. App. at 78-79. violates their freedom to expressive association by requiring them to hold Plaintiffs, a public high school recitations that contradict their educational student, two parents of private school philosophies. App. at 42-43. Finally, all students, and several non-religious private plaintiffs contend that Section 7-771(c)(2), schools, claim that the Act, by compelling as amended by the Act, violates the First schools to hold, and students to participate Amendment Establishment Clause by in, recitations of the Pledge of Allegiance privileging certain religious schools (those or the national anthem and salutations of that do not have to hold recitations because the flag, on its face violates the First and of their religious beliefs) over others. Fourteenth Amendments. The student App. at 44. plaintiff, Maxwell Mishkin, asserts that the Act violates his First Amendment free Plaintiffs filed their facial challenge speech rights because the plain language to the Act in the District Court for the of Section 7-771(c)(1) allows him to opt Eastern District of Pennsylvania and out of reciting the Pledge of Allegiance, named various Commonwealth officials as but not of the singing of the national defendants. The Commonw ealth, anthem. App. at 44. He also argues that responding to plaintiffs’ constitutional the parental notification portion of the Act claims, contends that the Act does allow serves as a deterrent to his exercise of free students to opt out of the singing of the expression rights not to participate in such national anthem; that the phrase “personal recitations, and that the phrase “personal belief” is not overly vague; and that the belief,” used in Section 7-771(c)(1) as the parental notification provision is permissible ground for students to decline administrative rather than punitive in reciting the Pledge of Allegiance and nature. More broadly, it argues that the saluting the flag, is unconstitutionally Commonwealth has a compelling interest vague. App. at 45-46. The parental in providing a full educational experience plaintiffs, James Rietmulder and Phyllis for children, including the teaching of Hochberg, claim that the Act violates their patriotism and civics; that any school can, fundamental liberty interest under the while offering the recitations every school Fourteenth Amendment to choose the way day, disavow the government policy in which their children are educated underlying the requirement and make a because it interferes with the missions and general disclaimer; and that the Act does educational philosophies of the private not violate the Establishment Clause by schools in which they choose to enroll providing le gitima te a nd neutra l their children. App. at 43-44. The private accommodations to certain religious school plaintiffs, the Circle School, Project schools. Learn, the Crefeld School, the School in
The parties, after jointly stipulating Rose Valley, and Upattinas School and to certain facts, filed cross motions for Resource Center, argue that the Act summary judgment. The District Court, in an order and opinion dated July 15, 2003, restrictive mea ns to advan ce the granted in part, and denied in part, both government’s compelling interest to teach motions. Specifically, it ruled in patriotism and civics. 270 F. Supp. 2d at defendants’ favor that Section 7-771(c)(1) 626-27. Finally, the court agreed with the does allow students to opt out of the plaintiffs’ claim that Section 7-771(c)(1) singing of the national anthem and does unconstitutionally interferes with the not violate the First Amendment on that school plaintiffs’ ability to express their ground; that “personal belief” as used in values and forces them to espouse the Section 7-771(c)(1) has a commonly Commonwealth’s views. 270 F. Supp. 2d accepted and readily ascertainable at 627-29. m e a n i n g a n d i s th e r e f o r e n ot
The end result of the District unconstitutionally vague; and that Section Court’s decision is that Section 7- 7-771(c)(2) does not violate th e 771(c)(1) is unconstitutional on its face. Establishment Clause because it is Moreover, although the court found nar r o w l y tailored to serv e th e Section 7-771(c)(2) to be a proper exercise Commonwealth’s compelling interest in of government power under the First accommodating religious practices. The Amendment Establishment Clause, it also Circle School v. Phillips, 270 F. Supp. 2d found that the section has no independent 616, 621-23, 629-31 (E.D. Pa. 2003). force in the absence of Section 7- These findings are not at issue in this 771(c)(1). 270 F. Supp. 2d at 631. The appeal. District Court therefore entered a The District Court, however, ruled pe rm a nen t injunc tion pro hibitin g that the parental notification clause in defendants from enforcing the Act. Section 7-771(c)(1) is a viewpoint-based
Defendants now appeal the portion regulation that operates to chill students’ of the District Court’s order granting speech. 270 F. Supp. 2d at 623-26. It summary judgment in favor of plaintiffs. cannot survive the strict scrutiny required As plaintiffs do not cross-appeal the for such viewpoint discrimination because District Court’s rulings in favor of it is not the most narrowly tailored method defendants, our review is limited solely to to achieve the government’s interest in the three issues presented by defendants, notifying the parents of the administration representing the Commonwealth: whether of the Act, an interest that is, in any case, the parental notification provision violates not sufficiently compelling to infringe on students’ First Amendment free speech students’ free speech rights. Id. at 624. rights, whether the Act violates parents’ The court further ruled that Section 7- Fourteenth Amendment fundam ental 7 7 1 ( c ) (1 ) v i o l a te s t h e p a r e n t s ’ liberty interest in choosing the educational fundamental liberty interest, under the method used to educate their children, and Fourteenth Amendment, in the education whether the Act violates the private of their children because it is not the least schools’ exercise of their rights in free expressive association. language makes clear, however, the First Amendment’s guarantee of “wide freedom
JURISDICTION AND STANDARD
in matters of adult public discourse” does
OF REVIEW
not mean that the First Amendment rights This is a civil rights action brought of students in the public schools are pursuant to 42 U.S.C. § 1983. The District “automatically coextensive with the rights Court had subject matter jurisdiction over of adults in others settings.” Bethel Sch. the action under 28 U.S.C. §§ 1331, 1343. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 We have jurisdiction over the appeal under (1986). For example, the Court ruled in 28 U.S.C. § 1291. Fraser that a student may be disciplined for
having delivered a speech that was This court exercises plenary review sexually explicit, but not legally obscene, over the district court’s decision to grant or at a school assembly. Id. at 685-86. The deny summary judgment. “Summary Court also ruled in Hazelwood Sch. Dist. judgment is proper if there is no genuine v. Kuhlmeier, 484 U.S. 260 (1988), that a issue of material fact and if, viewing the high school principal may delete materials facts in the light most favorable to the non- that he found objectionable from the moving party, the moving party is entitled student-run school newspaper, as “[a] to judgment as a matter of law.” Pi school need not tolerate student speech Lambda Phi Fraternity, Inc. v. Univ. of that is inconsistent with its basic Pittsburgh, 229 F.3d 435, 441 n.3 (3d Cir. educational mission.” Id. at 268 (citation 2000). and internal quotation omitted). More DISCUSSION recently, we have held that a school’s prohibition of language threatening A. Whether the parental notification clause violence or use of force, and suspension of of Section 7-7 71(c)(1) constitutes a kindergarten student for uttering such viewpoint discrimination in violation of language during recess in the school yard, the First Amendment did not violate the student’s First In Tinker v. Des Moines Indep. Amendment rights. S.G. ex rel. A.G. v. Comty. Sch. Dist., 393 U.S. 503 (1969), Sayreville Bd. of Educ., 333 F.3d 417 (3d the Supreme Court stated the well-known Cir. 2003). principle that “First Amendment rights,
This careful balance between the applied in light of the spec ial First Amendment rights of students and characteristics of the school environment, the special needs of the state in ensuring are available to teachers and students. It proper educational standards and can hardly be argued that either students or curriculum is demonstrated by the line of teachers shed their constitutional rights to cases beginning with West Virginia State freedom of speech or expression at the Bd. of Educ. v. Barnette, 319 U.S. 624 schoolhouse gate.” Id. at 506. (1943), in which the Supreme Court As the first part of the quoted upheld a district court’s injunction against public schools that we examine the the enforcement of a state board of Commonwealth’s interest in the parental education resolution requiring public notification clause of Section 7-771(c)(1). school students to salute the national flag The Commonwealth contends that the Act, and punishing a student’s refusal to salute with the student opt-out clause and the the flag as an act of insubordination p a r e n t al n o t i f i c a t i o n m e c h a n i s m , qualifying such student for expulsion. See represents a proper balance between the also Lipps v. Morris, 579 F.2d 834, 836 students’ right to freedom of speech and (3d Cir. 1978) (ruling that a state statute the Commonwealth’s (and some parents’) requiring students to stand during interest in the proper instruction of recitations of the Pledge of Allegiance was patriotic and civic values in all schools that an unconstitutional compulsion of “does not function to punish or discourage expression). Noting that “the compulsory students’ activities based upon the flag salute and pledge requires affirmation viewpoints that they choose to express.” of a belief and an attitude of mind,” 319 Appellants’ Br. at 17. They further assert U.S. at 633, the Barnette Court viewed the that “[w]hile notification provisions may at board of education’s resolution as a times appear punitive,” the purpose of the conflict “between authority and rights of notification system, as designed in the Act, the individual,” with “[t]he State “simply serves an administrative function, assert[ing] power to condition access to designed to efficiently inform all parents public education on making a prescribed of an aspect of their children’s education.” sign and profession and at the same time to Id. coerce attendance by punishing both
In support of its argument for the parent and child.” Id. at 630-31. While constitutionality of the Act’s parental the Barnette Court concluded that notification scheme, the Commonwealth government officials are forbidden under points to the parental notification the Constitution to compel or coerce requirements upheld by the Supreme Court students to salute the national flag or recite in the context of abortions by minors. In the Pledge of Allegiance, id. at 642, the H.L. v. Matheson, 450 U.S. 398 (1981), Court has subsequently found state and the Supreme Court held constitutional a local regulations offering the Pledge of state statute requ iring ph ysicians Allegiance, but permitting students to performing abortions to “[n]otify, if abstain from the recitation, as “[c]onsistent possible, the parents or guardian of the with our case law.” Elk Grove Unified woman upon whom the abortion is to be Sch. Dist. v. Newdow, 124 S. Ct. 2301, performed, if she is a minor . . . .” Id. at 2306 (2004) (citing Barnette). 400 (citation and emphasis omitted). The It is therefore in this context of Court, relying partly on Belotti v. Baird, constrained, but not complete absence of, 443 U.S. 622 (1979) (Belotti II), reasoned First Amendment rights for students in that the statute in question “gives neither parents nor judges a veto power over the that the Pennsylvania statute here, which minor’s abortion decision. . . . As applied merely provides for parental notification, to immature and dependent minors, the is constitutional. Appellants’ Br. at 18. statute plainly serves the important
The Commonwealth’s reliance on considerations of family integrity and the abortion cases is fundamentally protecting adolescents which we identified misplaced. Those decisions were rendered in Belotti II. . . . [T]he statute [also] serves under a different provision of our a significant state interest by providing an Constitution, invoked a different set of opportunity for parents to supply essential competing interests and rights, and medical and other information to a involved parental notification schemes that physician.” Matheson, 450 U.S. at 411; are differently structured. Not only are see also Belotti II, 443 U.S. at 640 (stating cases such as Matheson and Belotti II that “parental notice and consent are grounded on individuals’ rights under the qualifications that typically may be Due Process clause of the Fourteenth imposed by the State on a minor’s right to Amendment rather than the Free Speech make important decisions. As immature clause of the First Amendment, but the minors often lack the ability to make fully interests involved in those cases–the informed choices that take account of both maturity of the pregnant minor seeking immediate and long-range consequences, abortion, the significant third-party effects a State reasonably may determine that such abortions may have, and the state’s parental consultation often is desirable and interest in protecting the fetus–are wholly in the best interest of the minor”). different from the state’s provision of More recently, the Supreme Court proper educational curriculum and the has upheld p arenta l n otific atio n students’ right to be free from compelled requirements for abortions by minors, so expression. These are critical distinctions long as there exists a judicial bypass which the Supreme Court addressed in mechanism for those requirements. Barnette: “In weighing arguments of the Lambert v. Wicklund, 520 U.S. 292 parties it is important to distinguish (1997); Ohio v. Akron Ctr. for Reprod. between the due process clause of the Health, 497 U.S. 502 (1990); see also Fourteenth Amendment as an instrument Planned Parenthood of Southeastern Pa. v. for transmitting the principles of the First Casey, 505 U.S. 833 (1992) (upholding Amendment and those cases in which it is parental consent requirement for abortion applied for its own sake. . . . Much of the by minors based on the existence of a vagueness of the due process clause judicial bypass mechanism). Drawing disappears when the specific prohibitions from the balance between “the rights of a of the First become its standard.” 319 U.S. parent to control his or her child with a at 639. minor’s right” that was involved in these
Returning to the First Amendment abortion cases, the Commonwealth argues analysis of the parental notification clause, we agree with the District Court that the which permit the Government to notification requirement constitutes discriminate on the basis of the content of viewpoint discrimination that must survive the message cannot be tolerated under the strict scrutiny in order to be held First Amendment.” Regan v. Time, Inc., constitutional. In Barnette, the Supreme 468 U.S. 641, 648-49 (1984). But when Court stated: the regulations in question go beyond
content discrimination and turn on the The freedom asserted by specific views expressed by a speaker, these appellees [Jehovah such “[v]iewpoint discrimination is [ ] an Witness students who refuse egregious form of content discrimination” to recite the Pledge of and “[t]he government must abstain from Allegiance] does not bring regulating speech when the specific them into collision with motivating ideology or the opinion or rights asserted by any other perspective of the speaker is the rationale individual. It is such for the restriction.” Rosenberger v. Rector c o n f licts w h ic h m os t & Visitors of the Univ. of Va., 515 U.S. f r e q u e n t l y r e q u i r e 819, 829 (1995). As Justice Brennan intervention of the State to pointed out, “[v]iewpoint discrimination is determine where the rights censorship in its purest form.” Perry Educ. of one end and those of Ass’n. v. Perry Local Educators Ass’n., another begin. But the 460 U.S. 37, 62 (1983) (Brennan, J., refusal of these persons to dissenting). participate in the ceremony does not interfere with or Pennsylvania’s parental notification deny rights of others to do clause clearly discriminates among so. . . . The sole conflict is students based on the viewpoints they between authority and rights express; it is “only triggered when a of the individual.319 U.S. at student exercises his or her First 630. [2] Amendment right not to speak.” 270 F.
Supp. 2d at 623. A student’s decision to When the imposition of such recite the Pledge of Allegiance or the government authority is based on the national anthem, and thereby adopt the content of the speech, such “[r]egulations specific expressive messages symbolized by such an act, does not trigger parental notification. On the other hand, a [2] In a different context, we recently student’s refusal to engage in the required reiterated the principle that the First recitation leads to a written notice to his or Amendment prevents the government her parents or guardian, and possibly from compelling individuals to express parental sanctions. As the District Court certain views. See Cochran v. Veneman, correctly pointed out, given that the 359 F.3d 263, 267 (3d Cir. 2004). purpose of the bill is to support the Trustees, 635 F.2d 216, 228 (3d Cir. recitation of the Pledge of Allegiance or 1980). the national anthem in schools, a parental
The Commonwealth, on the other notification clause that is limited only to hand, does not offer any convincing parents of students who refuse to engage governmental interest which this parental in such recitation may have been notification scheme is designed to further. purposefully drafted to “chill speech by Its claims that “the parental notification providing a disincentive to opting out of system simply serves an administrative Act.” [3] Id. at 624. The Supreme Court has function, designed to efficiently inform all repeatedly stated that “constitutional parents of an aspect of their children’s violations may arise from the deterrent, or education,” and that “[p]resumably, less ‘chilling,’ effect of govern men tal administrative resources would be regulations that fall short of a direct expended informing the parents of those prohibition against the exercise of First who declined to participate than informing Amendment rights.” Bd. of County all parents,” are unpersuasive. Appellants’ Comm’rs v. Umbehr, 518 U.S. 668, 674 Br. at 17 & n.6. The administrative (1996) (quoting Laird v. Tatum, 408 U.S. c o n v e n i e n c e a r g u m e n t a p p e a r s 1, 11 (1972)); see Trotman v. Bd. of makeweight. It appears just as likely, if not more likely, that notification to all the school’s parents at one time, possibly [3] The legislative history provides along with other notices sent at the some evidence that such disincentive was beginning of the school year, would indeed part of the Commonwealth’s actually conserve administrative resources. motivation in adopting the parental Instead, under the Act, teachers must notification scheme. Representative watch for students who refuse to recite the Egolf, for example, suggested prior to Pledge of Allegiance, record their names, the bill’s passage that if a student refuses report them to the school administration to recite the Pledge or the national and notify their parents individually. anthem and the student’s parents do want
Of more fundamental importance, him or her to follow such recitation, the the Commonwealth’s stated interest of school may impose “whatever sanctions parental notification is simply not “so the school does for other disciplinary compelling of an interest” as to justify the things.” 270 F. Supp. 2d at 624. While viewpoint discrimination that significantly the opinion of a single legislator made in infringes students’ First Amendment the course of legislative debates is not rights. 270 F. Supp. 2d at 624. We agree dispositive for our adjudication of a with the District Court that the parental fundamental constitutional question, the notification clause of Section 7-771(c)(1) view of the legislator who introduced the unconstitutionally treads on students’ First bill sheds some light on its underlying Amendment rights. motivation. B. Whether Section 7-771(c)(1) violates . . . [T]o come within [the First the school plaintiffs’ First Amendment Amendment’s] ambit, a group must engage right to freedom of expressive association in some form of expression, whether it be
public or private.” Id. at 648. The District Court ruled that Section 7-771(c)(1) “unconstitutionally Here, the record supports the interferes with the School Plaintiffs’ holding of the District Court that the ability to express their values and forces school plaintiffs engage in expressive them to espouse the Commonwealth’s association, as required by Dale. By views.” 270 F. Supp. 2d at 629. nature, educational institutions are highly Specifically, the court agreed with the expressive organizations, as their school plaintiffs that Section 7-771(c)(1) philosophy and values are directly “requires them to affirm and have their inculcated in their students. Each school students affirm the Commonwealth’s view plaintiff has shown that it possesses clear on patriotism . . . impairing their ability to educational philosophies, missions and express certain values and philosophies goals. App. at 56-71, 82-90. The Circle which they wish to express. . . . [and] School’s public mission statement includes eliminat[ing] the ability of the students to the following: “[w]e believe in the wisdom make a choice, without coercion, whether of each person to know what’s best for to recite the Pledge or Anthem.” App. at him or her,” that “freedom to entertain 17. ideas must be unbounded,” and that “the
child person is encouraged to explore The freedom of expressive widely . . . physically, intellectually, association received its most recent and emotionally, socially, and spiritually” so extensive analysis in Boy Scouts of Am. v. that s/he may “grow[] in skills of Dale, 530 U.S. 640 (2000), where the perception and judgment.” App. at 56-57. Supreme Court held that the Boy Scouts Project Learn, similarly, states that “the could expel an assistant scoutmaster for educational program must provide the his homosexuality, notwithstanding New opportunity for children to share in the Jersey’s Law Against Discrimination, planning and directing of the learning because the Boy Scouts engaged in experience,” and “[t]he final choice must “expressive association.” Id. at 644. The always be the child’s to participate in an inclusion of a homosexual in the activity or not . . . the teacher’s organization, as the state law compelled, responsibility is to help the child to see would therefore violate the First clearly the choices available and the Amendment interest of the Boy Scouts. possible consequences of particular The Court stated that “[t]o determine choices.” App. at 66. Section 7-771(c), by whether a group is protected by the First requiring all schools to offer recitations of Amendment’s expressive associational the Pledge of Allegiance or the national right, we must determine whether the anthem to students every morning, group engages in ‘expressive association.’ substantially burdens the schools’ mission neither narrowly tailored nor the least of “freedom of choices.” restrictive mean of achieving that interest.
Pennsylvania law requires that all schools In this regard, the only defense teach civics, as well as a variety of other offered by the Commonwealth on Section subject matters. 24 Pa. Cons. Stat. Ann. § 7-771(c)’s constitutionality is that the 15-1511. Under that statute, each school Pledge is “only thirty-one (31) words,” the may select the method to satisfy that anthem is “eighty (80) words,” the requirement, which need not be by the rote recitation only takes “a very short period recitation of prescribed words. The latter, of time each day,” and “the private schools which is mandated by Section 7-771(c), is [can] make a general disclaimer” regarding therefore not the least restrictive method the recitation. Appellants’ Br. at 27-28. for achieving the Commonwealth’s goal. Certainly, the temporal duration of a It follows that Section 7-771(c) violates burden on First Amendment rights is not the school plaintiffs’ First Amendment determinative of whether there is a right to freedom of association. constitutional violation, especially when
C. Whether Section 7-771(c)(1) violates the burden imposed by the state carries a the parent plaintiffs’ fundamental liberty clear and powerful message that is to be interest in the education of their children disseminated every school day. Similarly, the fact that the schools can issue a general Finally, plaintiffs argue that the Act disclaimer along with the recitation does violates the student parents’ fundamental not erase th e Fir s t A m endment liberty interest, under the Fourteenth infringement at issue here, for the schools Amendment, in the education of their are still compelled to speak the children. Specifically, they assert that Commonwealth’s message. Otherwise the “[t]he Act . . . infringes on the rights of state may infringe on anyone’s First parents of [students enrolled in plaintiff Amendment interest at will, so long as the private schools] to choose the manner in mechanism of such infringement allows which to educate their children by the speaker to issue a general disclaimer. imposing restrictions unrelated to Such an idea is contrary to the First legitimate educational concerns, including Amendment’s plain language. but not limited to the requirement that non-
religious private schools begin each day As we find that Section 7-771(c) with a recitation of the Pledge of infringes on the school plaintiffs’ First Allegiance or National Anthem as well as Amendment associational rights, we must the requirement contained in the Parental examine whether it survives strict scrutiny. Notification Provision.” App. at 43-44. W e d o n o t q u e st i o n t h a t t h e They rely on Meyer v. Nebraska, 262 U.S. Commonwealth’s asserted interest of 390 (1923), where a plurality of the Court teaching patriotism and civics in all held unconstitutional a statute prohibiting schools is compelling, but the Act is teaching in German, and Pierce v. Soc’y of the Sisters, 268 U.S. 510 (1925), where the march to their own drummers. It is they Court invalidated a state statute requiring who need the protection afforded by the all children to attend public schools Constitution and it is the responsibility of instead of private schools. The federal judges to ensure that protection. Commonwealth, however, contends that
For the reasons set forth in this because “[n]o student is compelled to opinion, we will affirm the District Court’s participate in the recitation of the Pledge order. of Allegiance or the National Anthem since any student has the right to excuse themselves based on religious conviction or personal belief” and “parents retain the right, if they so choose, to counsel their children (a) to adopt a religious or personal belief system which is inconsistent with the recitation of the [Pledge or anthem] and (b) to exercise their rights to opt out of participating in the recitation of the [Pledge or Anthem],” the Act does not violate the Fourteenth Amendment. Appellants’ Br. at 25-26. The District Court, using reasoning similar to that it used in its First Amendment rulings, upheld the parents’ claim.
In light of our holding that the Act violates the First Amendment rights of school students and private schools and is therefore unconstitutional, we need not reach Plaintiffs’ Fourteenth Amendment claim and will therefore not address it here.
CONCLUSION
It may be useful to note our belief that most citizens of the United States willingly recite the Pledge of Allegiance and proudly sing the national anthem. But the rights embodied in the Constitution, most particularly in the First Amendment, protect the minority – those persons who
NOTES
[1] Although the plain language of Section 7-771(c)(1) only allows students to opt out of reciting the Pledge of SLOVITER, Circuit Judge. Allegiance and saluting the flag, the Pennsylvania Act 157 of 2002 District Court held that the phrase (“Act 157” or the “Act”), codified as 24 “saluting the flag” also encompasses the Pa. Cons. Stat. Ann. § 7-771(c), mandates singing of the national anthem. The that all public, private, and parochial Circle School v. Phillips, 270 F. Supp. 2d schools within the Commonwealth display 616, 622 (E.D. Pa. 2003). Neither party the national flag in every classroom and challenges that holding here.
