Disir
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- Sep 30, 2011
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To win a lawsuit against public officials for infringing your constitutional rights, you first have to show that the officials violated clearly established law.
Brinsdon’s best argument was that it’s clearly established law that school officials can’t compel students to recite the Pledge of Allegiance.
That’s true, of course -- and has been since 1943, when the U.S. Supreme Court reversed an earlier decision and held that there was a constitutional right against compelled speech that allows students to exempt themselves from saluting the flag and reciting the pledge.
That decision, West Virginia v. Barnette, is one of the most remarkable constitutional decisions in the court’s history. I teach it on the first day of my First Amendment class. The court’s opinion, by the great Justice Robert Jackson, has several highlights. Probably the most quoted is this winner:
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.
But the 5th Circuit correctly noticed that the issue in Brinsdon’s case isn’t whether she could be compelled to recite the U.S. pledge, but whether she could be required to recite the Mexican pledge as part of an educational exercise. And it held that because this was a different circumstance from the one discussed in the Barnette case, Brinsdon could not show that the teacher’s assignment was in violation of clearly established law.
The First Amendment Can't Save You From Your Homework
Bam! Just like that. It's over.
Brinsdon’s best argument was that it’s clearly established law that school officials can’t compel students to recite the Pledge of Allegiance.
That’s true, of course -- and has been since 1943, when the U.S. Supreme Court reversed an earlier decision and held that there was a constitutional right against compelled speech that allows students to exempt themselves from saluting the flag and reciting the pledge.
That decision, West Virginia v. Barnette, is one of the most remarkable constitutional decisions in the court’s history. I teach it on the first day of my First Amendment class. The court’s opinion, by the great Justice Robert Jackson, has several highlights. Probably the most quoted is this winner:
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.
But the 5th Circuit correctly noticed that the issue in Brinsdon’s case isn’t whether she could be compelled to recite the U.S. pledge, but whether she could be required to recite the Mexican pledge as part of an educational exercise. And it held that because this was a different circumstance from the one discussed in the Barnette case, Brinsdon could not show that the teacher’s assignment was in violation of clearly established law.
The First Amendment Can't Save You From Your Homework
Bam! Just like that. It's over.
