11th Circuit: Fla. statute requiring parental permission to opt-out of pledge of allegiance is not facially unconstitutional

An 11th Circuit panel has issued a per curiam ruling in the case of Frazier v. Winn, No. 06-14462 (11th Cir. July 23, 2008). A few excerpts:

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This case involves Florida’s Pledge of Allegiance statute, section 1003.44(1), Florida Statutes (“Pledge Statute”), which applies to students at all grade levels from kindergarten to twelfth grade. The statute states, in pertinent part:

The pledge of allegiance to the flag . . . shall be rendered by students. . . . The pledge of allegiance to the flag shall be recited at the beginning of the day in each public elementary, middle, and high school in the state. Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge. Upon written request by his or her parent, the student must be excused from reciting the pledge. When the pledge is given, civilians must show full respect to the flag by standing at attention, men removing the headdress, except when such headdress is worn for religious purposes . . . .

Fla. Stat. § 1003.44(1) (emphasis added) . . .

The district court concluded that the Pledge Statute’s requirement of parental consent was a facially unconstitutional restriction that “robs the student of the right to make an independent decision whether to say the pledge.” The district court also construed the Pledge Statute to require that students excused from the Pledge must stand and concluded that this requirement was facially unconstitutional. The district court’s ruling was made a final judgment. The State appealed. We affirm the district court’s judgment in part and reverse it in part.

We address the two requirements imposed by the Pledge Statute that Plaintiff alleges are facially unconstitutional. First, we address whether the statute’s requirement that “civilians” stand at attention during the Pledge is facially unconstitutional. We then address the facial constitutionality of the statute’s requirement that a student provide a written request by a parent to be excused from reciting the Pledge . . .

Having determined that the Pledge Statute’s requirement that “civilians” stand during the recitation of the Pledge in schools is a violation of the Constitution, we must consider whether this requirement is severable from the rest of the statute . . . Because nothing indicates that the Florida legislature would have declined to enact the Pledge Statute absent the provision which we see as unconstitutional, we conclude that the invalid “standing at attention” provision may be severed . . .

We conclude that the State’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech. Even if the balance of parental, student, and school rights might favor the rights of a mature high school student in a specific instance, Plaintiff has not persuaded us that the balance favors students in
a substantial number of instances—particularly those instances involving elementary and middle school students—relative to the total number of students covered by the statute.

We therefore decline to validate Plaintiff’s facial challenge. To the degree that the district court’s judgment invalidates the “written request by . . . parent” requirement of the Pledge Statute, the judgment is reversed. We stress that we decide and hint at nothing about the Pledge Statute’s constitutionality as applied to a specific student or a specific division of students.

AFFIRMED IN PART and REVERSED IN PART.