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A federal judge Tuesday struck down a new Pennsylvania law that would have required public and private schools in Pennsylvania to begin each day by having students sing the national anthem or recite the Pledge of Allegiance. Senior U.S. District Judge Robert F. Kelly of the Eastern District of Pennsylvania found that the law violates the constitutional rights of all three groups of plaintiffs — the students, their parents and the schools. If the state wants to teach patriotism and civics, Kelly said, a better approach would be to require classes on those subjects. The ruling is a victory for attorneys Joyce S. Meyers and Michael K. Twersky of Montgomery, McCracken, Walker & Rhoads and Stefan Presser of the ACLU of Pennsylvania who filed the suit in February just hours before the law was set to go into effect. The law was put on hold after a brief hearing in which a state education official agreed not to enforce it while the suit was pending. In a 29-page decision in The Circle School v. Phillips, handed down late Tuesday, Judge Kelly found that the new law — a pair of subsections added to the Pennsylvania Public School Code — failed to pass constitutional muster because it infringed on fundamental rights and was not “narrowly tailored” to advance a “compelling state interest.” Kelly found that the students’ rights were violated by a provision in the law that requires parents to be notified whenever a student exercises his or her right not to participate in singing or reciting. “There is evidence that the drafters of the act intended for the parental notification provision to chill speech by providing a disincentive to opting out,” Kelly wrote. Kelly found there was no reason why the law could not employ a “generalized notice” to all parents that informed them of the new mandate to sing or recite, and that “your son or daughter may opt out … based on religious conviction or personal belief.” Such an advance notice, Kelly said, would achieve the same goals without chilling any speech. PARENTS’ RIGHTS Plaintiffs’ lawyers argued that the parents’ rights were violated because mandating that the pledge or anthem be recited every morning undermines certain educational messages that they want their children to receive. The parents also said they feared that the law would adversely affect the ability of the private schools they chose for their children to fulfill their missions of exposing students to certain values and philosophies, including the fostering of individuality, self-discovery and self-learning. In response to the parents’ claims, lawyers for the commonwealth argued that the state has a compelling interest in providing a full educational experience for children, including the teaching of patriotism and civics which are important for the development of an educated and responsible citizenry. Kelly agreed that the state had identified a compelling interest, but found that the law was not narrowly tailored because it did not employ the “least restrictive means” for advancing that interest. “I agree with the plaintiffs that recitation of the pledge or anthem is not the least restrictive means of promoting the teaching of civics. I further agree that a class which teaches the importance of civics and the students’ roles as citizens is a more narrowly tailored way in which to further the defendants’ stated interest,” Kelly wrote. Turning to the arguments made by the schools, Kelly found that the law “unconstitutionally interferes with the school plaintiffs’ ability to express their values and forces them to espouse the commonwealth’s views.” Plaintiffs’ lawyers successfully argued that the schools’ opposition to the law found support in the U.S. Supreme Court’s 2000 decision in Boy Scouts of America v. Dale that reversed a unanimous decision by the New Jersey Supreme Court requiring the Boy Scouts to accept homosexuals. Pennsylvania’s new law runs afoul of Dale, the plaintiffs argued, because it forces private schools to express certain views by requiring the recitation of the pledge or anthem, which are contrary to the schools’ educational philosophies, and therefore restricts their right to engage in only the expressive activity in which they wish to engage. Kelly agreed, saying “as stated in Dale, it ‘seems indisputable that an association that seeks to transmit such a system of values engages in expressive activity.’” The schools argued that the law requires them to affirm and have their students affirm the commonwealth’s view on patriotism — impairing their ability to express certain values and philosophies which they wish to express. But lawyers for the commonwealth argued that the law does not prevent “private schools from disavowing the policy underlying the act and from making it clear to their students that they do not share or endorse the viewpoint of the commonwealth.” As a result, the commonwealth’s lawyers argued that “private schools retain not only the right, but the capability to make a general disclaimer before [the recitation of the pledge or anthem] and may teach their own message regarding the wisdom of the commonwealth’s policy.” Kelly disagreed, saying that “in Dale, the Court did not hold that the Boy Scouts were required to accept homosexuals because they could make it clear that they do not endorse New Jersey’s homosexual inclusive view.” Instead, Kelly said, the justices held that “New Jersey could not force the Boy Scouts to accept homosexuals because such a requirement would interfere with their beliefs.” In the section of the opinion addressing the students’ rights, Kelly quoted a passage from Supreme Court Justice Thomas H. Jackson’s 1943 decision in West Virginia State Board of Education v. Barnette, which held that students’ First Amendment rights are violated when the state compels them to recite the pledge, salute the flag or in some other way declare a belief. Jackson wrote: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. “We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the state as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. “If there is any fixed star in our constitutional constellation, it is 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. If there are any circumstances which permit an exception, they do not now occur to us,” Jackson wrote. Kelly found that Jackson’s words “are as appropriate now as they were 60 years ago.” Stefan Presser, in an interview last night, said he was especially heartened by Kelly’s quote from the Barnette case, a decision Presser described as coming during “one of the nation’s darkest moments — World War II.” The lesson of both decisions, Presser said, is that “government cannot force people to declare their patriotism.”

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