The First Amendment Can't Save You From Your Homework
YOU CAN'T MAKE ME DO THIS.
PHOTOGRAPHER: JOHN MOORE/GETTY IMAGES
The First Amendment protects students against being forced to recite the Pledge of Allegiance. So how was it legal for a Texas teacher to require students to recite the Mexican pledge of allegiance, as a federal appeals court held this week? The answer lies in the difference between compelled symbolic speech and compelled class participation.
The events underlying the case attracted national attention of the Glenn Beck variety when they occurred in 2011. Brenda Brinsdon was then a high school sophomore in McAllen, Texas, a town near the Mexican border. The teacher of her Spanish class gave students the assignment of facing the Mexican flag with a 45-degree salute and reciting the Mexican pledge of allegiance. The assignment was intended both to teach Spanish language and to give students the “cultural” experience of imitating another nation’s pledge.
Brinsdon, whose mother is from Mexico, objected, explaining that she believed “pledging her allegiance to a different country was wrong.” Notably, she also thought none of the students should have to participate. The teacher told her that the assignment was graded and mandatory. Ultimately, after the principal’s intervention, Brinsdon was given an alternative assignment. She got a C, whereas other students mostly got A’s on the pledge assignment.
This being America, Brinsdon sued for violation of her constitutional rights. A federal district court rejected her claims. And the U.S. Court of Appeals for the 5th Circuit on Tuesday upheld that judgment.
To win a lawsuit against public officials for infringing your constitutional rights, you first have to show that the officials violated clearly established law.
Brinsdon’s best argument was that it’s clearly established law that school officials can’t compel students to recite the Pledge of Allegiance.
That’s true, of course -- and has been since 1943, when the U.S. Supreme Court reversed an earlier decision and held that there was a constitutional right against compelled speech that allows students to exempt themselves from saluting the flag and reciting the pledge.
That decision, West Virginia v. Barnette, is one of the most remarkable constitutional decisions in the court’s history. I teach it on the first day of my First Amendment class. The court’s opinion, by the great Justice Robert Jackson, has several highlights. Probably the most quoted is this winner:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
But the 5th Circuit correctly noticed that the issue in Brinsdon’s case isn’t whether she could be compelled to recite the U.S. pledge, but whether she could be required to recite the Mexican pledge as part of an educational exercise. And it held that because this was a different circumstance from the one discussed in the Barnette case, Brinsdon The First Amendment Can't Save You From Your Homework - Bloomberg View:
