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Federal court decision means students can refuse the pledge

'Right to speak also right not to speak'

Monday, September 01, 2003

By Jim McKinnon, Post-Gazette Staff Writer

The constitutional freedom to speak also makes Americans free not to, according to a recent U.S. District Court opinion.

For more background on Pennsylvania's current open records and open government laws visit our First Amendment Forum.

So, as school bells toll this month, they ring in freedom for Pennsylvania students to resist state or school district orders to say the Pledge of Allegiance or sing the national anthem.

Senior U.S. District Judge Robert F. Kelly in Philadelphia signed an order last month that nullified an act passed in December by the Pennsylvania Legislature that had required all students and teachers to stand and recite the Pledge of Allegiance or sing the national anthem.

That act also had required all public and private schools to display the American flag, but they were exempt if that violated their religious convictions.

The act said, however, if a student refused to comply for any reason, a letter would be sent to the parents explaining the defiance.

The legislation was the most recent attack on a 60-year-old U.S. Supreme Court ruling that supported the complaint of Jehovah's Witnesses in West Virginia who believed that the government could not force them to recite the pledge or even stand while others recited it.

Later, a high court ruling in an Ohio case required that nonparticipants remain in respectful silence while others willingly recited the pledge.

In February, parents and students in public and private schools in the Eastern District of the state filed motions in federal court to stop the act from taking effect. Named as defendants were the Pennsylvania Department of Education, which is in charge of enforcing the state School Code, as amended by the Legislature.

The Pennsylvania chapter of the American Civil Liberties Union has said it believed the parental notification requirement would discourage students from exercising their right not to participate.

"The pledge is something that should be voluntary. If you have to compel students to recite it, it's so contrary to what our country is all about," said Larry Frankel, the ACLU's legislative director.

"Patriotism cannot be compelled," said Witold Walczak, legal director of the Greater Pittsburgh chapter of the ACLU, concurring with Frankel.

"When a government tries to compel patriotism, it undermines freedom," Walczak continued. "If you think about it, the hallmark of any totalitarianism regime is compelled patriotism."

Last month, the Colorado Legislature passed a similar act that required all students and teachers to stand during recitation of the pledge, whether they participated or not. That legislation now is on hold for nine months because it, too, has been challenged in federal court.

U.S. District Judge Lewis Babcock issued an injunction, extending to the end of next year, while Colorado lawmakers work to bring their new law into compliance with the Constitution.

If the legislation were upheld in Pennsylvania and Colorado, plaintiffs say, it would violate their First Amendment freedom of speech rights and would mean "improperly interfering with their fundamental liberty in raising their children and directing the method of their education," Kelly wrote in the Pennsylvania case.

Neither the pledge nor the national anthem is part of the Constitution and regulations requiring adherence are not enforceable, Walczak said.

That means, he said, "the right to speak is also the right not to speak."

Schools still are free to decide to order the pledge; however, they cannot force any student to say it or to stand for it, Walczak said.

"At least twice a year we get a complaint from a student that they were threatened by suspension for not standing for the pledge," he said.


Jim McKinnon can be reached at jmckinnon@post-gazette.com or 412-263-1939.

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