The Circle School v. Pappert
Pennsylvania law mandates that all public, private, and parochial schools display the national flag in every classroom and provide for the recitation of the Pledge of Allegiance or the national anthem at the beginning of each school day.
Like similar statutes in other states, the law allows private and parochial schools to opt out of its requirements on religious grounds, and gives students the option of refraining from participating in the recitation and saluting the national flag on religious or personal grounds. However, it also requires school supervising officials to notify, in writing, parents or guardians of those students who have declined to join in the recitation or salute the flag.
The Third Circuit Court of Appeals recently held that the parental notification provision of the law violates the school students’ First Amendment right to free speech and is therefore unconstitutional. It also held that certain of the law’s remaining provisions violate private schools’ First Amendment right to free expressive association.
The Court held that Pennsylvania’s reliance on parental notification in abortion cases as justification for parental notification for failure to recite the Pledge of Allegiance was fundamentally
misplaced. The Court found that the abortion decisions were rendered under a different provision of the Constitution, invoked a different set of competing interests and rights, and involved parental notification schemes that are differently structured.
The abortion cases are grounded on individuals’ rights under the Due Process clause of the Fourteenth Amendment rather than the Free Speech clause of the First Amendment, and the interests involved in those cases-the maturity of the pregnant minor seeking abortion, the significant third-party effects such abortions may have, and the state’s interest in protecting the fetus-are wholly different from the state’s provision of proper educational curriculum and the students’ right to be free from compelled expression.
The Court reasoned that the Pledge of Allegiance notification requirement constitutes viewpoint discrimination that must survive strict scrutiny in order to be held constitutional. When the imposition of such government authority is based on the content of the speech, such regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.
But when the regulations in question go beyond content discrimination and turn on the specific views expressed by a speaker, such viewpoint discrimination is an egregious form of content discrimination and the government must abstain from regulating speech when the specific
motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.
The Court concluded tha Pennsylvania’s parental notification clause clearly discriminates among students based on the viewpoints they express; it is only triggered when a student exercises his or her First Amendment right not to speak. A student’s decision to recite the Pledge of Allegiance or the national anthem, and thereby adopt the specific expressive messages symbolized by such an act, does not trigger parental notification.
On the other hand, a student’s refusal to engage in the required recitation leads to a written notice to his or her parents or guardian, and possibly parental sanctions. Given that the purpose of the bill is to support the recitation of the Pledge of Allegiance or the national anthem in schools, a parental notification clause that is limited only to parents of students who refuse to engage in such recitation may have been purposefully drafted to chill speech by providing a disincentive to opting out of Act.
The Supreme Court has repeatedly stated that constitutional violations may arise from the deterrent, or chilling, effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights. The Pennsylvania parental notification clause unconstitutionally treads on students’ First Amendment rights.