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Beginning today, a new state law requires that public and private schools in Pennsylvania must begin the day by having students sing the national anthem or recite the Pledge of Allegiance. But in a hearing in federal court that ended at about 6 p.m. Thursday, state education officials promised not to enforce the law until Senior U.S. District Judge Robert F. Kelly of the Eastern District of Pennsylvania has a chance to hold an injunction hearing in a suit brought by a school and a student who say such “compelled speech” violates their constitutional rights. Under the law, students have the right to refuse to recite the pledge or salute the flag “on the basis of religious conviction or personal belief.” But whenever a student refuses, the law requires that school officials notify their parents in writing. Religious schools are also entitled to opt out of the law, but only if complying with it would violate “the religious conviction on which the school was based.” The suit was filed by attorneys Joyce S. Meyers and Michael K. Twersky of Philadelphia-based Montgomery, McCracken, Walker & Rhoads, along with attorney Stefan Presser of the ACLU of Pennsylvania. Named as plaintiffs in the suit are the Circle School in Dauphin County near Harrisburg, Pa., and Lower Merion High School student Maxwell S. Mishkin. The case is Circle School v. Fisher. The Circle School claims in the suit that complying with the law would violate its core principles since its philosophy is grounded in principles of self-governance. Mishkin, 15, who is the son of Philadelphia attorney Jeremy Mishkin, claims in the suit that while he is a patriot, he believes that mandating the recitation of the pledge or the national anthem infringes on his free speech rights, and that the threat of notifying parents for those who refuse “serves as a disincentive to exercising his constitutional rights.” In a brief asking for an injunction, the plaintiffs’ lawyers argue that the new law “flies in the face of the United States Constitution and decades of Supreme Court precedent.” “Although the act was undoubtedly conceived as a well-intentioned effort to foster a sense of patriotism among Pennsylvania school children, it infringes upon the constitutional rights of both students and academic private schools by compelling public affirmation of particular beliefs,” the brief says. In 1943, the U.S. Supreme Court held in West Virginia State Board of Education v. Barnette that school students cannot be compelled to recite the Pledge of Allegiance. Under the Pennsylvania law, students are specifically allowed to refuse to recite the pledge, but are not allowed to refuse to sing the national anthem, according to the suit. The plaintiffs’ lawyers also complain that while the Pennsylvania law appears to grant students the right to refuse to recite the pledge, it was also “created with the specific intent to coerce students, under the threat of discipline, to recite the pledge and the national anthem even where it conflicts with the students’ ideological views.” Named as defendants in the suit are Pennsylvania Attorney General Mike Fisher, Acting Secretary of Education Vicki Phillips and the eight members of the State Board of Private Academic Schools. In a brief hearing Thursday evening, lawyers for the state Department of Education told Judge Kelly that they had no interest in enforcing the law immediately. When the hearing began shortly after 5 p.m., Kelly appeared somewhat annoyed with the plaintiffs’ lawyers, asking, “Is there a reason why you couldn’t have given us more time to work on this?” Twersky told the judge that the plaintiffs had come forward only recently and that the plaintiffs’ team was busy working on court papers until just prior to coming to court. After the hearing, Presser said that the reason for the late filing was a reluctance on the part of many potential plaintiffs to take a lead role in a lawsuit that could prove to be highly controversial. “We’ve been getting a lot of calls [at the ACLU] from teachers and school administrators and others who are incensed about this law,” Presser said. But the decision to be a plaintiff proved to be difficult for many, Presser said, noting that some potential plaintiffs said they feared hate mail or pickets if they opted to go to court.

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