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Fawn Allred was supposed to teach Alabama high school students about economics and government, but in May of 2000, her class morphed into a four-year lesson on the First Amendment. The trouble surrounded the custom of Parrish High School — located in the Appalachian foothills about 40 miles northwest of Birmingham — starting its day with students’ reciting the Pledge of Allegiance. One senior, Jonathan Michael Hutto, stuck his hands in his pockets and refused to say the Pledge. When Allred reported his defiance to the school principal, Hutto was ordered to apologize to Allred and the class. The next day, another senior, Michael Holloman Jr., refused to recite the Pledge and silently raised his fist to protest Hutto’s treatment. The principal, George Harland, gave Holloman a punishment of three days’ detention. Since graduation was less than three days away, Holloman agreed to receive a paddling instead so that he could attend the ceremonies. Holloman brought a civil rights suit against Allred, Harland and the Walker County school board, claiming they violated his free speech rights. Drawing in another clause of the First Amendment, Holloman also accused Allred of conducting a regular moment of silent prayer and, therefore, violating his rights against government-established religion. A federal trial judge tossed the suit, agreeing with the defendants that Holloman’s claims did not constitute a free speech violation. The judge also said the defendants were entitled to legal protection because the law was not clearly established enough to put them on notice that their actions could have violated Holloman’s free speech or Establishment Clause rights. But last week, a panel of the 11th U.S. Circuit Court of Appeals voted 2-1 to reinstate Holloman’s suit, essentially clearing the way for a trial to take place on the evidence. Judge Gerald B. Tjoflat and visiting 3rd Circuit Senior Judge Robert E. Cowen held that Holloman’s demonstration was protected by the First Amendment. They relied on a 1969 U.S. Supreme Court decision, Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, that said a high school student had the right to wear a black armband protesting the Vietnam War. Writing for the pair, Tjoflat noted that the Tinker decision said school officials could not prohibit students’ expression unless the officials reasonably expected the expression to result in “substantial disruption or material interference with school activities.” The majority rejected Allred’s claim that she disciplined Holloman because a number of students were disturbed by his demonstration and she feared his behavior would lead to further disruptions by other students. Tjoflat compared Allred’s concerns to those of school officials in another case who forced students to cut their hair so that other students who didn’t like long hair wouldn’t be provoked into breaking school rules and responding violently. “If certain bullies are likely to act violently when a student wears long hair, it is unquestionably easy for a principal to preclude the outburst by preventing the student from wearing long hair,” Tjoflat wrote. “To do so, however, is to sacrifice freedom upon the altar of order, and allow the scope of our liberty to be dictated by the inclinations of the unlawful mob.” Tjoflat and Cowen also held that Allred could be held liable for violating the Establishment Clause for what she called a daily “ritual” of a moment of silence, one she started by saying, “Let us pray,” and ended by saying, “Amen.” PREVENTING DISRUPTIONS The third member of the panel, Judge Charles R. Wilson, joined the majority in holding that a trial should take place to see whether Holloman was punished for failing to say the Pledge, which if true, clearly violated his rights. Wilson also agreed with the majority that Holloman had a clearly established First Amendment right not to be discriminated against on the basis of his apparently unpatriotic viewpoint and that Allred may have violated the Establishment Clause by leading her class “in a prayerful moment of silence.” But Wilson dissented from the majority holding that Holloman had a First Amendment right to raise his fist during the school’s recitation of the Pledge, comparing the demonstration to raising one’s fist during math class. “Such an act is inherently disruptive, and a teacher has every right to prevent such conduct in his or her classroom in order to prevent any potential disruption,” wrote Wilson. Holloman’s fist raising, Wilson argued, “is not a passive expression, like wearing a button on the front of one’s shirt. “Like holding up a sign, it inherently is the sort of activity that distracts students during class,” Wilson added. Holloman v. Harland, Nos. 01-13864 and 01-15094 (11th Cir. May 28, 2004). REASON FOR PUNISHMENT AT ISSUE Russell B. Robertson of Jasper, Ala.’s Laird & Robertson represents the school board, Harland and Allred. He said they still were deciding whether to ask the full 11th Circuit to take up the case or go to trial. Robertson said his clients “vehemently dispute” that Holloman and Hutto were punished because they refused to recite the Pledge, which he agrees would have been unconstitutional. He said that the year before these incidents, the school had not punished a group of students who refused to say the Pledge for religious reasons. Instead, Robertson said, Hutto and Holloman were punished for disrupting the class. When Allred asked Hutto why he had refused to say the Pledge, he responded, according to the court, that he “didn’t want to say it, he didn’t have to say it, and he hadn’t said it for a month.” Hutto’s defiance clearly irked Allred and Harland, the principal, in particular, because the student had just been accepted into the U.S. Air Force Academy. The court decision stated that Harland said he would report the incident to the Air Force if Hutto did not apologize. But Robertson said Harland ordered the apology for Hutto’s “smart” response to Allred’s inquiry. “I dispute that that’s a punishment” for not saying the Pledge, Robertson said. Hutto originally was part of Holloman’s suit, but he dropped it about the time he entered the Air Force Academy. He graduated this week, according to the Air Force, but he could not be reached to discuss why he refused to say the Pledge, why he sued or why he dropped the case. As for Holloman’s fist raising, Robertson said his punishment came for disrupting the class, arguing that he would have been punished for yelling “Yea flag” during the Pledge. Neither Holloman nor his attorney, Charles C. Tatum Jr. of Jasper, returned calls seeking an interview.

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