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 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.