Mimesis Law
3 August 2020

5th Circuit to School: Pledging Allegiance To Mexico Works For Us

August 10, 2016 (Fault Lines) — It’s hard not to sigh when thinking of Tinker v. Des Moines. Such a promising opinion. Such great language:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

But of course, children are unruly. They can have unpopular opinions. Some of them even advocate BONG HiTS 4 JESUS. So there has been a steady chipping away of the rights of children. We teach them to be citizens by telling them what opinions may acceptably be expressed at school, and to whom.

And now, apparently, it’s time to start telling them what things to say. In Brinsdon v. McAllen Independant School District, the 5th Circuit Court of Appeals upheld a grant of summary judgment to a school district that required students, as part of a homework assignment, to pledge allegiance to the country of Mexico while holding their arms at the required 45-degree angle.

Brenda Brinsden, whose mother was born in Mexico, objected to the practice. She believed it was wrong to pledge allegiance to another country, even as part of a classroom assignment. She told her teacher that she would be willing to sing the national anthem of Mexico, or give the American pledge in Spanish, but that she would be unwilling to pledge allegiance to Mexico as required.

She later recorded other students taking the pledge, and was given a C on another makeup assignment. A month later, she was removed from the class because, as her teacher said, “if she didn’t feel comfortable with the Mexican pledge, then it was my opinion that she didn’t need to be in the classroom.”

This may have had something to do with Brenda sending in her camera footage to Fox News to massive public outrage, but the court says even if that’s true, there’s no clearly established constitutional right not to be punished for talking to the media, especially when it leads to “hundreds” of mean communications.

This is not the first time that an issue like this has been litigated. In 1943, Justice Jackson wrote that children could not be compelled to pledge allegiance to the flag of the United States of America.

Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected[11] route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute and slogan

The 5th Circuit Court of Appeals held that this case was only “superficially” similar, however, because the West Virginia pledge required that the person pledging believe in the pledge they were making, where this pledge had an educational, rather than a patriotic, purpose. The 5th Circuit coined a phrase to cover it—a “pledge of simulated beliefs.”

And that would be an interesting argument if not for the fact that Barnette also says:

It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barren of meaning…

The 5th Circuit distinguishes this language by arguing that the teacher in this case wasn’t trying to force “orthodoxy.” It analogized pledging allegiance to Mexico to reciting the words of a play, writing mock opinions in the tone of a Supreme Court Justice, or refraining from plagiarism—all things that have been upheld by federal courts.

But, of course, there is an important difference here. Pledging allegiance, out loud, in front of a classroom full of people while facing a flag, is a powerful symbolic act, comparable to kneeling on a prayer rug or accepting a sacrament. People who pledge allegiance to this country for the first time at naturalization ceremonies often have a powerful emotional reaction, as do those viewing them.

There is, of course, no problem with having students study the Mexican pledge. Writing it down, translating it, even reading it out loud are all things that almost any student would be comfortable with. But when you force a student to engage in the full symbolic act to get a passing grade, and punish her for failing to comply, you’re pushing the boundaries of compelled speech.

Even worse is the court’s half-assed response to the argument that kids shouldn’t be punished for speaking to the media. Brinson’s story received mass public attention precisely because many people felt the school was being unreasonable. Those “hundreds” of internet comments and mean things that were being said about the teacher requiring the pledge? Those are literally the point of free speech, to bring matters of public concern to public attention.

But under the court’s rationale, students are free to talk to the outside world only about those things that others will agree with the school about. The court naturally compounds the problem by failing to say whether it actually violates the Constitution to punish students for public commentary, noting only that there are “concerns.” This ensures that the next student published for going to the press also won’t have a clearly established right.

Tinker was the high-water mark of student speech. But in a country that fails to trust even young adults to speak their mind “responsibly,” schoolchildren are once again victim to those who know better.

3 Comments on this post.

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  • Chris
    10 August 2016 at 1:36 pm - Reply

    The assignment seems very strange. I question it from a pedagogical standpoint. But that is something that should be kept at the local level.

    On one hand we are dealing with, I assume, compulsory*(unless you opt out with private or home school) public education run by the government. So the school can’t argue, if you don’t like the subject matter don’t take the class. On the other hand, teachers should be free to require their students to demonstrate what they’ve learned, and have the academic freedom, to explore subjects (including possibly divisive subjects like comparative religious studies etc.), within certain bounds.

    What bounds? I’m not sure. Good taste? Sound pedagogical principles? Academic freedom? Who knows… maybe that is why courts are hesitant to step in. Local control is generally better than running to the courts of the United States.

    And the authority to test students can go beyond multiple choice fill in the bubble.

    Because if you constitutionalize it, then imagine students arguing that they don’t want to write the essay because, that would be compelled speech, and I don’t wanna write the damn 30 page paper etc.

    • Andrew Fleischman
      10 August 2016 at 1:52 pm - Reply

      That’s what the 5th Circuit pointed out as a potential concern. The distinction here is that the action itself is powerfully symbolic. Imagine a school holding “educational” baptisms or having children perform an entire Shiite prayer service to show them what it’s like. Pledges are innately meaningful in a way that essays aren’t.

    • Ryan
      10 August 2016 at 5:31 pm - Reply

      It was a Spanish class that calls for learning not only the language but also the knowledge and understanding of other cultures, so that makes some pedagogical sense.

      In addition, the student was given an alternate assignment to write a half-page paper on the independence of Mexico (the student received a very poor grade on that alternate assignment, so that might be a problem in and of itself, but there was an alternate assignment given).

      The student’s original lawsuit also cited the student having to listen to other students recite the Mexican pledge and the fact that there was a Mexican flag in the classroom as part of her complaint. Part of the lawsuit appears to claim that requiring an alternate assignment at all was a Constitutional violation and that a student should have the right to refuse an assignment, not undertake an alternate assignment, and not receive any grade-related consequences from that.

      The 5th has been weird with school-related First Amendment issues (their cheerleader-related rulings alone are contradictory), but the student also appears to have been overreaching a little bit by claiming that requiring an alternative assignment at all was itself a violation and implying (if not outright saying) that having to watch others recite the pledge or sit in a classroom with a flag from another country were themselves violations.