Parents, Students, and the Pledge of Allegiance: Why Courts Must Protect the Marketplace of Student Ideas

Abstract

In Frazier v. Winn, the U.S. Court of Appeals for the Eleventh Circuit upheld as constitutional a Pledge of Allegiance statute that requires students to obtain parental permission prior to refraining from Pledge recitation in school. The decision raises controversial issues regarding the current status of the fundamental right to free speech possessed by students, espoused by the U.S. Supreme Court over sixty years ago in West Virginia State Board of Education v. Barnette. Particularly, where do the First Amendment rights of students stand in relation to the established rights of both parents and educational institutions? For instance, when parents and students disagree, whose rights should schools protect and promote? In light of the debate and confusion caused by recent student speech and Pledge of Allegiance cases, this Note confronts the tension among public educational institutions, parents, and students. Specifically, this Note proposes that when determining the validity of Pledge statutes in the future, the constitutional rights of students should be determinative, regardless of the opinion or rights of their parents.