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Earlier this summer, the U.S. Supreme Court declined to address the constitutionality under the First Amendment of compelling students to recite the Pledge of Allegiance. Ruling on a similar issue Thursday, a 3rd U.S. Circuit Court of Appeals panel showed no trepidation in declaring that key provisions of Pennsylvania’s Pledge of Allegiance law violate the First Amendment. In so holding, the judges affirmed a July 2003 decision by the Eastern District that Act 157 of 2002 is unconstitutional on its face. Senior U.S. District Judge Robert F. Kelly had also entered a permanent injunction barring state officials from enforcing the act, which also allowed Pennsylvania’s students the option of singing the national anthem at the beginning of each school day. “It may be useful to note our belief that most citizens of the United States willingly recite the Pledge of Allegiance and proudly sing the national anthem,” Judge Dolores K. Sloviter wrote in The Circle School v. Pappert. “But the rights embodied in the Constitution, most particularly in the First Amendment, protect the minority — those persons who march to their own drummers. It is they who need the protection afforded by the Constitution and it is the responsibility of federal judges to ensure that protection.” Sloviter was joined by Judge Richard L. Nygaard and U.S. District Court for the District of Columbia Senior Judge Louis F. Oberdorfer, who sat by designation. Attorneys involved in the plaintiffs’ side of the case said they hope the panel’s decision will help persuade the commonwealth to end appeals. “It seems to me there’s no need to take this any further,” said Larry Frankel, legislative director of the American Civil Liberties Union of Pennsylvania. “[Appealing] would be a waste of taxpayers’ money and the attorney general’s resources… . I would hope that our attorney general has more important cases to move on to.” The plaintiffs in the case were represented by Stefan Presser, legal director of the ACLU of Pennsylvania, and Montgomery McCracken Walker & Rhoads partner Joyce Meyers and associates Michael Twersky — who argued on the plaintiffs’ behalf — and Robert Blood. Bringing suit in Circle School were a public high school student, two parents of private school students and several non-religious private schools, according to the opinion. At issue was the parental notification provision of Act 157, under which the parents of students who refrain from recitation are informed of what their children have done. The private school-plaintiffs also challenged the act as violating their right to free expressive association. The judges ruled that the parental notification provision of the act violated the student-plaintiff’s First Amendment right to free speech while the act’s remaining portions violated the school-plaintiffs’ First Amendment right to free expressive association. The panel did not reach the parent-plaintiffs’ argument that the act violates their fundamental liberty interest under the 14th Amendment. Under the act, according to the opinion, all teachers and officials in charge of public, private or parochial schools are to ensure that the U.S. flag is displayed in each classroom and that students either recite the Pledge of Allegiance or sing the national anthem at the start of each day. Students may decline, but the school is to notify their parents of such actions. The act offers an exemption to any private or parochial school for which displaying the flag or reciting the Pledge of Allegiance violates the school’s religious convictions, according to the opinion. The opinion cites to a dialogue between Reps. Allan Egolf, R-Franklin and Perry Counties, and Greg S. Vitali, D-Delaware County, held on the floor of the state House prior to final passage of Act 157. During the exchange, Egolf, who sponsored and introduced the bill, confirms for Vitali that under the act, the only way a student — even a high school senior — could avoid reciting the Pledge of Allegiance would be if his or her parents gave their permission for their child to refrain. “While the opinion of a single legislator made in the course of legislative debates is not dispositive of a fundamental constitutional question,” Sloviter wrote in a footnote, “the view of the legislator who introduced the bill sheds some light on its underlying motivation.” The judges devoted the bulk of their opinion to addressing the student-plaintiffs’ objection to the parental notification clause of the act. In its 1943 decision in West Virginia State Board of Education v. Barnette, the U.S. Supreme Court limned a “careful balance” between students’ First Amendment rights and the schools’ obligation to abide by proper education standards and curricula, Sloviter wrote. “While the Barnette court concluded that government officials are forbidden under the Constitution to compel or coerce students to salute the national flag or recite the Pledge of Allegiance, the court has subsequently found state and local regulations offering the Pledge of Allegiance, but permitting students to abstain from the recitation as consistent with [its] case law,” Sloviter wrote, citing to the high court’s recent decision in Elk Grove Unified School District v. Newdow. In June, the national furor over Newdow fizzled to a halt when the justices failed to reach the constitutional issues presented by the case because the respondent lacked standing. The judges in Circle School rejected the commonwealth’s argument that the constitutionality of Act 157′s parental notification provision is supported by the Supreme Court’s permission of parental notification requirements in cases involving abortions by minors. “The commonwealth’s reliance on the abortion cases is fundamentally misplaced,” Sloviter wrote, noting that the abortion cases involved the Due Process clause of the 14th Amendment, not the Free Speech clause of the First. The judges concluded that the parental notification provision amounts to viewpoint discrimination, as the provision is only triggered when a student refrains from recitation and not when a student willingly participates in it. “As the district court correctly pointed out … a parental notification clause that is limited only to parents of students who refuse to engage in such recitation may have been purposefully drafted to ‘chill speech by providing a disincentive to opting out of [the] Act,’” Sloviter wrote, quoting Kelly’s July 2003 opinion. Turning to the private schools’ First Amendment argument, the judges cited the Supreme Court’s controlling analysis of the freedom of expressive association in Boy Scouts of America v. Dale, the 2000 decision in which the justices held that the Boy Scouts could expel an assistant scoutmaster for being homosexual. “Here, the record supports the holding of the district court that the school-plaintiffs engage in expressive association, as required by Dale,” Sloviter wrote. “By nature, educational institutions are highly expressive organizations, as their philosophy and values are directly inculcated in their students.” Sean Connolly, spokesman for Attorney General Jerry Pappert, said that his office will be discussing appellate options with officials from the Pennsylvania Department of Education. Calls to the Department of Education’s press office seeking comment were not immediately returned. Frankel and plaintiffs’ attorney Twersky called Act 157 the most restrictive Pledge of Allegiance-compelling statute in the country. “I would hope that [courts in] other states see what the 3rd Circuit has done and realize that you can’t just make laws that restrict the constitutional rights of students,” Twersky said.

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