Frazier v. Winn

High school student loses fight to refrain from reciting the Pledge of Allegiance without first getting his parents’ permission.

The Issue: The Eleventh Circuit Court of Appeals upheld a Florida state law that requires public school students to recite the Pledge of Allegiance unless they are excused by a note from their parents. Public Good urged the United States Supreme Court to review and reverse the decision.

Why It Matters: The United States Supreme Court first recognized the right of students to refrain from reciting the Pledge during World War II. In West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), the Court established the principle that an individual’s freedom of speech is violated not only when he is forbidden to express his beliefs—including criticisms of the government—but equally when he is required to espouse beliefs he does not share. This principle applies especially to expressions of patriotism or religious orthodoxy, because compelling the Pledge “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” In subsequent decades, students’ right to refrain from reciting the Pledge has come to epitomize the general principle, set forth in Barnette, 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.” The Eleventh Circuit’s decision to uphold Florida’s Pledge statute threatened to erode the clarity of this fundamental precedent.

Public Good’s Contribution: Public Good authored the only amicus brief in the case, urging the Supreme Court to grant certiorari and reverse the holding of the Eleventh Circuit. Public Good argued that the decision contradicted precedents applicable to Pledge recitation specifically and student speech generally. The Court of Appeals had accepted Florida’s argument that this case was different from countless precedents affirming student’s right to abstain from the Pledge, in that the Florida statute protected parents’ rights to direct the upbringing of their children—as if all the earlier cases concerned only students whose parents had no interest in their upbringing. Public Good’s brief argued that the parental rights argument was a red herring and that the Florida statute could not withstand First Amendment scrutiny: the law was not viewpoint-neutral because it did nothing to protect the rights of parents who might want their children not to recite the Pledge. The law also failed to meet First Amendment standards because it would likely be applied to older students, like Frazier himself, as to whom imposing a parental consent requirement on the exercise of fundamental rights of free expression is particularly indefensible.

Amici joining Public Good: Public Good’s brief was filed on behalf of itself and the Center for Constitutional Rights, one of the nation’s most prominent advocacy organizations for civil liberties and human rights.

Outcome: The Supreme Court denied review.

535 F.3d 1279 (11th Cir. 2008), rehearing and rehearing en banc denied, 555 F.3d 1292 (11th Cir. 2009), and cert. denied, 130 S.Ct. 69 (2009).

Download our brief filed in the Frazier v. Winn case.