Parents, Students, and the Pledge of Allegiance: Why Courts Must Protect the Marketplace of Student Ideas

IntroductionOn October 5, 2009, the U.S. Supreme Court denied a petition for writ of certiorari in Frazier v. Winn, a student speech case decided by the U.S. Court of Appeals for the Eleventh Circuit.1 The case arose out of an incident on December 8, 2005, when Cameron Frazier, an eleventhgrade student at Boynton Beach Community High School, in Palm Beach County School District, refused to stand and recite the Pledge of Allegiance (the "Pledge") in class.2 Florida's Pledge of Allegiance statute (the "Pledge statute"), which applies to students from kindergarten to twelfth grade, states in pertinent part:The pledge of allegiance to the flag . . . shall be rendered by students . . . . The pledge of allegiance to the flag shall be recited at the beginning of the day in each public elementary, middle, and high school in the state. Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge. Upon written request by his or her parent, the student must be excused from reciting the pledge.3Frazier's teacher informed him that, because he did not have written permission from his parents exempting him from the Pledge recitation, he was legally required to participate.4 Frazier refused, and was removed from class and disciplined.5 Following this incident, Frazier, through his mother, brought an action under 42 U.S.C. § 1983 alleging that section 1003.44 of the Florida Statutes violated his rights under the First and Fourteenth Amendments to the U.S. Constitution.6 The case was eventually heard in 2008 by the Eleventh Circuit in Winn, where a decision was issued in favor of the state, upholding the Pledge statute.7 The court quickly dismissed Frazier's primary claim that the Pledge statute violated the U.S. Supreme Court's ruling in the 1943 case of West Virginia State Board of Education v. Barnette,8 the landmark case that first recognized a "student's right to refrain from pledge participation."9 Rather, the Eleventh Circuit interpreted the Pledge statute as protecting the fundamental right of parents to control the upbringing of their children.10 The court concluded that the state's interest in protecting parental rights justifies restricting students' free speech rights.11Although that decision is now final because the Supreme Court denied the petition for certiorari, the issues it raises remain controversial and are worthy of in-depth analysis.12 If statutes like the one at issue in Winn are upheld by courts, then where does that leave the fundamental right to free speech possessed by students and previously recognized by courts?13 Likewise, when parents and students disagree, should schools and courts defer to the rights of parents at the expense of the rights of students?14The triangle of interests among parents, students, and public educational institutions has been the subject of many court cases throughout the past century, and many scholars have analyzed and assessed the rights and obligations of these parties in the context of public high schools.15 Student speech cases tend to focus on the tension between a student's constitutional right to free speech and school officials' right to regulate student behavior.16 Other cases focus on balancing a parent's right to control the upbringing of his or her child and a school's right to provide an appropriate education to that child.17 Scholars often presuppose that students and their parents are of one mind, with the same viewpoint.18 Few scholars, and few cases for that matter, focus on what happens when students and their parents disagree.19 Scholars do, however, tend to agree that courts must afford relative weight to parents' rights and students' rights without eliminating either.20Part I of this Note discusses the history of student speech rights within public high schools.21 Part I also reviews the development of parental rights generally and in the context of the classroom, noting that courts are inconsistent in their sensitivity to parents' wants and desires. …