Supreme Court Denies Review in Frazier- Florida Pledge of Allegiance/ Parent’s Rights Case

Well, the Supreme Court issued its order list  of cases it granted Cert in last week after its first long conference, and Frazier was not among the cases Cert was granted in, but as of today Cert has now been denied.  For those of you not familiar with this case, a case I had the privilege of arguing at the trial level in the Southern District, this is a case that is referred to as being about reciting the pledge, but it is really a case that is important in the context of parental rights.

Basically, this case was about the facial constitutionality of the Florida Statute that allows students not to participate in saying the pledge, but that required a parent’s written permission for a student to opt out of saying the pledge.  There was a issue as to another portion of the statute and all civilians being required to stand, but that was always a side issue, because the State consistently said that if a student is excused from saying the pledge, he is excused from everything, including standing.  The Eleventh Circuit held that it was constitutional to require a parents permission in writing before a student was excused from a pledge, and that this requirement did not violate the Student’s First Amendment rights, but protected the parental right in the upbringing of their minor child.

This should not have been a particularly surprising outcome, tut Judge Barkett had a vehement dissent from the the denial of the rehearing en banc, and a law review article from UM took a similarly dismissive view. (opinions and article to be posted later).

In the educational context, don’t forget that the parents have the right to choose what courses a minor child will take, what extra- curricular activities the child will engage in, and even, as established by the Supreme Court in Wisconsin v. Yoder, whether if for religious reasons a child will not be educated beyond the 8^th grade.  When it comes to minor children, they need a parent’s permission for almost everything, even exercising fundamental rights, such as the right to marry. The only real area of legal exception is the abortion context, and some related sexual heath issues.

The assumption has always been that the parents control whether or not a child would participate in the pledge – interestingly enough, in the Barnett case on the right not to say the pledge, the statute struck in that case would have imprisoned the parents if their child refused to say the pledge- an implicit acknowledgement that the parents control whether a child participates in the pledge.  And, of course, there are potential consequences for parents today in regard to a child participating in the pledge- it would be perfectly lawful in most cases for a private business to fire a parent because it became public that they allowed their child to refuse to participate in the pledge.

More analysis of this case hopefully to follow.