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 BOYNTON BEACH, FLA---The Palm Beach County School Board is the target of a federal lawsuit filed Dec. 22 by a high school junior and the American Civil Liberties Union for allegedly punishing the student for refusing to stand during the Pledge of Allegiance.
Acting on behalf of a public school student who says he was harassed and punished for refusing to participate in the Pledge of Allegiance, the American Civil Liberties Union of Florida has filed a lawsuit against Palm Beach County school officials for failing to respect the First Amendment rights of 17-year-old Cameron Frazier.
The lawsuit also challenges a Florida law and a Palm Beach County school board policy mandating that students receive written permission from their parents before declining to recite the patriotic oath.
"The courts have ruled time and time again that students in public schools have the First Amendment right to remain quietly seated during the Pledge of Allegiance," said attorney James Green, legal panel chair of the ACLU of Florida's Palm Beach County Chapter. "Cameron is a very patriotic student, but his is a quiet form of patriotism. In a very polite and respectful way, he declined to stand for the pledge and the teacher berated him in front of his classmates."
The lawsuit names math teacher Cynthia Alexandre and assistant principal Richard Poorman as defendants, along with the Palm Beach County School Board.
Alexandre ordered Cameron, a junior at Boynton Beach Community High School, to stand for the Pledge of Allegiance during her fourth period math class on Dec. 8. When Frazier refused, citing the fact that he had not stood for the Pledge since sixth grade and that he wasn't going to change his practice, his teacher responded by saying: "Oh you wanna bet? See your desk? Now look at mine. Big desk, little desk. You obviously don't know your place in this classroom."
She allegedly cursed at Frazier and accused him of being unpatriotic and then ordered him to leave the classroom. Alexandre cited the school district policy requiring students to obtain written permission from their parents in order to refuse to stand for the Pledge.
"I believe that the real meaning of the flag - freedom, liberty and equality - has been tarnished by the recent policies of our government," said Cameron. "Patriotism is more than going along with everybody else and just saluting a flag. It's about things like supporting our troops during the holidays and helping hurricane victims."
The ACLU is asking a Palm Beach federal court to declare Florida Statute 1003.44 (1) and the school district's policy unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution.
The ACLU is also asking the court to prohibit school officials from disciplining or retaliating against Frazier for refusing to stand.
According to state law, the pledge must be recited at the beginning of the day at all elementary, middle and high schools. School district spokesman Nat Harrington says that a student must stand for the pledge even if he is exempt from reciting it with a written request from a parent, according to the school.
According to David L. Hudson Jr., First Amendment Center research attorney, the compelled-speech issue seemed to have been resolved by the U.S. Supreme Court more than 60 years ago with its landmark 1943 decision West Virginia Board of Education v. Barnette. Despite the decision allowing to students to opt out of saying the pledge, children have been punished for refusing to stand during or to recite the Pledge of Allegiance. In March 1998, a 13-year-old Jehovah's Witness in a Seattle middle school was forced to stand outside in the rain for 15 minutes for refusing to say the pledge. In April 1998, a 16-year-old student in San Diego was forced to serve detention for her failure to recite the pledge.
In the aftermath of the Sept. 11, 2001, terrorist attacks, a resurgence of patriotism has swept the nation. Public schools have helped fuel this patriotic zeal by placing an increased emphasis on the pledge. Several state legislatures have either considered or passed laws requiring the recitation of the Pledge of Allegiance. For example, Hudson said, Colorado passed a law in 2002 that required all public school students to recite the pledge unless they had a religious objection or had obtained parental permission to abstain from the oath. After Colorado's American Civil Liberties Union chapter challenged the law in federal court, the Legislature in March 2004 enacted a revised statute to allow students to opt out of the pledge.
These examples are somewhat surprising given the decision in Barnette. In that case, the high court struck down a West Virginia law that penalized students and their parents if the children failed to salute the U.S. flag or recite the pledge. The students could be expelled for insubordination, while their parents could face a $50 fine and a 30-day jail term.
Barnette established a baseline of protection for student rights and clearly held that students could not be forced to recite the Pledge of Allegiance.
One federal appeals court (in Lipp v. Morris) even ruled in 1978 that school officials in New Jersey violated the First Amendment when they punished a student for refusing to stand during the Pledge of Allegiance.
Even though Barnette established that students have the right to opt out of reciting the pledge, students today are still punished for refusing to participate.
Consider the case of Michael Holloman, a high school student in Alabama. In May 2000, Holloman was castigated by teacher Fawn Allred and then paddled by a school administrator for raising his fist during the recitation of the Pledge of Allegiance. Holloman remained silent and raised his fist to express support for fellow student John Michael Hutto, who had been forced to apologize to Allred's class for refusing to recite the pledge one day earlier. Holloman said he believed the treatment of Hutto was unfair and unconstitutional.
Holloman sued Principal George Harland, Allred and the Walker County Board of Education, alleging a violation of his First Amendment rights. In August 2000, a federal judge granted summary judgment to the defendants, reasoning that they had qualified immunity because there was no clearly established right to silently raise one's fist during the pledge.
On appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals reversed in Holloman v. Walker County Board of Education. In the May 2004 ruling, the panel voted 2-1 to reinstate Holloman's lawsuit, saying that the lower court erred in dismissing it. The majority also reasoned that it was improper for the federal judge to grant the teacher and principal qualified immunity because it was clearly established that students cannot be forced to recite the Pledge of Allegiance. "Barnette clearly and specifically established that schoolchildren have the right to refuse to say the Pledge of Allegiance," the majority wrote. "Under Barnette, any 'reasonable person would have known' that disciplining Holloman for refusing to recite the pledge impermissibly chills his First Amendment rights."
The school officials' attorneys argued that the teacher and principal were justified because Holloman's act in raising his fist was disruptive and upset other students. The majority disagreed, writing, "Where students' expressive activity does not materially interfere with a school's vital educational mission, and does not raise a realistic chance of doing so, it may not be prohibited simply because it conceivably might have such an effect."
The majority concluded, "Holloman had the constitutional right to raise his fist during the Pledge of Allegiance so long as he did not disrupt the educational process or the class in any real way."
The school defendants contended that Holloman's right to raise his fist during the pledge was not clearly established because Barnette applied to students with hands by their sides or in their pockets, rather than with clenched fists.
"This is a hair we will not split," the panel responded. "First Amendment protections are not lost that easily." 12-26-05
© 2005 North
Country Gazette
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