Circle Sch v. Atty Gen PA ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-19-2004
Circle Sch v. Atty Gen PA
Precedential or Non-Precedential: Precedential
Docket No. 03-3285
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PRECEDENTIAL WACHTEL, Member, State Board of
Private Academic Schools
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT Vicki Phillips; Jane M.
Allis; Denise Biondo; Bryce
Hatch; Marquita Jones;
No. 03-3285 C ar ol yn P a sa ne k; D r.
Roberta L. Schomburg; Kim
Smith; Ted Wachtel,
THE CIRCLE SCHOOL; JAMES Appellants
RIETMULDER; MAXW ELL S.
MISHKIN, by His Parents and Next *(Amended per Court Order
Friends Jeremy and Barbara Mishkin; dated 3/11/04)
PHYLLIS HOCHBERG; PROJECT
LEARN, a School Community;
UPATTINAS SCHOOL AND On Appeal from the United States
RESOURCE CENTER; THE SCHOOL District Court for the Eastern District of
IN ROSE VALLEY; THE CREFELD Pennsylvania
SCHOOL (D.C. Civil No. 03-cv-00763)
District Judge: Hon. Robert F. Kelly
v.
THE HONORABLE GERALD J. Argued March 9, 2004
PAPPERT*, Attorney General for the
Commonwealth of Pennsylvania; THE Before: SLOVITER and NYGAARD,
HONORABLE VICKI PHILLIPS, Circuit Judges, and OBERDORFER,
Secretary of Education Designee for the District Judge*
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
1
Although the plain language of
Section 7-771(c)(1) only allows students
SLOVITER, Circuit Judge. to opt out of reciting the Pledge of
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.
2
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 ledge 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
t h e flag violates the App. at 78. Responding to another
religious conv iction on representative’s question regard ing
3
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 ledge 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
to get his parents’
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
parents want to–
noncompliance . . . .
Apparently, there are some
religions that do not do the Mr. EGOLF. It
pledge, so they could opt wo uld be whatever
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 all t h e o t h er
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.
4
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
5
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
n a r 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 r m a ne nt 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
6
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. 624schoolhouse gate.” Id. at 506.
(1943), in which the Supreme Court
As the first part of the quoted
7
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
8
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
h a s u p h e ld parental notific 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,
9
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.
frequently require
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).
10
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 nc e a r g u m e n t a p p e ar 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.
11
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.’
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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
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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
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